Anthony Patrick King appears for sentence in respect of three charges of dishonestly obtaining a financial advantage by deception in breach of section 192E(1)(b) of the Crimes Act. Each offence has a maximum sentence of 10 years imprisonment and there is no standard non-parole period. I take the maximum sentence into account as a legislative guidepost indicating the legislature's view of the seriousness of the offending so as to assist in arriving at the appropriate sentence.
There are three particular issues that arise in the case, the first of which is best dealt with at the outset. That first issue is whether or not reports by a psychiatrist and a psychologist (and perhaps even a sentencing assessment report) are admissible.
In support of his subjective case the offender seeks to rely upon a report of a psychiatrist, Dr Christopher Bench of 10 November 2022, and a report of Thea Gumbert-Jourjon, a psychologist dated 1 November 2018. The basis of the Crown's objection is that the history given by the offender on which those reports are based is not verified on oath and is not tested. The Crown relied upon Lai v R [2021] NSWCCA 217. Notably in that case the histories that were given that were not verified on oath formed the basis of the consideration of the subjective cases. The passage relied on here by the Crown is the penultimate paragraph before the making of the orders in the decision of Justice Bellew. The point being taken now was not taken in Lai, and the passage is an observation as to appropriate practice. Bellew J endorsed the view set out in the judgment of Justice Whealey in Elfar [2003] NSWCCA 358 at [25], where his Honour said:
The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - R v Palu. In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.
R v King [2023] NSWDC 100 | Case summary | Zoe
Bellew J then said.
Those observations have since been consistently reiterated by this Court.[88] There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged.
Whilst the first passage refers to objecting to such material, notably in neither passage just cited is the view expressed that such reports are inadmissible. Both passages plainly deal with the issue as a question of weight.
In Qutami itself [2001] NSWCCA 353 the passage often referred to in the judgment of Smart J is in the form of an observation and is as follows:
58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
This topic is dealt with in the sentencing bench book at [1-490] where there is a passage from the judgment of Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour said:
Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [[2001] NSWCCA 353] at [58]-[59].
Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [[2002] NSWCCA 381 at [40]-[41]]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25].
It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].
If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19].
More recently was the decision of Lloyd [2022] NSWCCA 18. The point of that decision at [46] and [47] was to make a distinction between where objection is taken and where it is not or as referred to in paragraph 46 where the report is challenged or not, perhaps a relevant distinction in terminology given the weight of authority is that the issue is one of weight rather than admissibility. The point being that where there is no challenge to the untested nature of the basis of a report then subject to other matters it should be taken into consideration and given appropriate weight.
The result of this is that the reports will be admitted, for the question is not one of admissibility, but one of how much weight to give the untested assertions of an offender awaiting sentence that are not on oath. There was also an application for a direction under section 4 of the Evidence Act. The application was made in the course of the argument as to how to treat the reports. The basis of that application was apparently so as to facilitate the taking of the objection. The result would be the same. That is, if the Evidence Act applied, the expert report would be admitted, and would be given such weight as appropriate depending on the extent to which its assumptions (or the history) is made out on the other evidence. For that reason, the direction sought under s4(2) is not made.
The Crown's main point was to contest the assertion by the offender that he was a victim of childhood sexual abuse. This allegation, on the material available, was first made in 2018, when the offender consulted the psychologist. The Crown's argument was that given the nature of the offending, dishonesty, and its repeated nature since 2000, and that there was no assertion of the abuse in the 2007 and 2008 sentencing hearings before Judge Murrell, that it should not be accepted. As an observation, claims of having been subjected to childhood sexual abuse in my short experience have increased since the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse. It may be that the offender truly suffered such abuse and did not feel able to disclose it prior to 2018. I note that he received a victim's compensation payment of $10,000 in respect of such abuse. His version of events was apparently not tested in that process, and it should therefore be viewed in a similarly guarded way as to the history given in the reports that were objected to. In all the circumstances, particularly the nature of the offending, and the decision of the offender to choose to not be tested on this assertion, and also bearing in mind even with the above reservation the failure to mention it in the first two sentencing hearings, I am not satisfied to the lesser standard required that the offender has suffered child sexual abuse.
The Crown further submitted that the whole of the offender's history should be considered "tainted" by not being tested. The approach taken is to view the history given in a guarded way. There is in the Crown bundles provided to the court the reasons on sentence for the three earlier offences, and they set out the history provided in those cases. That is somewhat problematic, because in the 2018 sentence the same psychologist report is relied on, including the history it recounts. The appropriate course is to take a guarded approach and use the material in a sensible fashion to set out the background of the offender, and to be guarded as to relying too heavily, if at all, on major factual assertions made by the offender, which if accepted, may be of significant assistance. Perhaps somewhat ironically, the offender makes no submission of any causal connection between his alleged abuse and the diagnosis of PTSD and the offending. He does seem to suggest a connection between his efforts to validate himself and to show himself worthy to his family by the offending, and his history of being an orphan. I do not accept that argument for the offender; not only is it not verified or tested, but it seems a strange way to heighten the family's view of him by committing serious crime, and even more so when the crime has nothing to do with the family business, as had been able to be said in respect of the first 2 offences sentenced in 2007 and 2008.
The Crown did not challenge the finding of PTSD, although the Crown then made submissions along the lines of the offending being inconsistent with such a condition.
The other two particular issues are the issues of totality and delay and they are dealt with below. These issues arise because in 2018 the offender was sentenced by Judge Sutherland SC for a third offence, of a Commonwealth offence of dishonesty which was committed in the approximately same period as the current offending, and arguably the present matters could have or should have been dealt with at the same time, in 2018.
[2]
The facts
The offending was carried out in the periods 1 January 2013 to 23 June 2013 (count 1) and 1 July 2014 to 13 December 2015 in respect of counts 2 and 3.
The offender was arrested 10 May 2021, so it was some eight years between the facts of the first charge and arrest and between approximately 6 and 7 years between the second and third counts. As will be seen below part of that period of time was spent in custody for offending of a similar nature at about the time of counts 1, 2 and 3.
The offender was in custody from arrest on 10 May 2021 to 2 September 2021. There is no issue that the sentence should be backdated to take this time into account, or that this period should otherwise be taken into account.
There are no matters to be dealt with by the form 1 procedure. The offender was not on conditional liberty at the time of the offending.
The facts of the first charge are that the offender provided a false assets and liabilities sheet of a company known as Pacific 1 showing it had assets to the value of some $1.3 million. The victim agreed to lend $250,000 on 14 February 2013 on a condition that would see him be repaid $300,000 on 1 July 2013. The victim was sent correspondence from a solicitor's firm purporting to act for Pacific 1 which was said to be owned by the offender's wife stating the money was held in trust to the extent of $200,000. Other correspondence indicated that Macquarie Bank had agreed to advance $350 million to Pacific 1 to allow the purchase of a company, Transit Australia Group (TAG), which conducted a business involving buses for $150 million and a further $200M dollars for fleet replacement.
In these circumstances the victim was asked if he would like to reinvest his investment, supposedly now $300,000 and he agreed to do so. The new loan was for $1.5 million to be lent on 30 May 2013 on terms that would see $3.5 million repaid one year later on 31 May 2014. In June 2013 the victim deposited $1.2 million pursuant to this agreement with the balance of $300,000 being the supposedly now $300,000 of the first investment. Discounting the $50,000 interest the total invested was $1.45M which is the total relating to this charge.
It transpired that the solicitors concerned never acted for the company and the offender (or more accurately Pacific 1) was not in the process of buying TAG and Pacific 1 had no assets. The money was transferred into other accounts held or controlled by the offender and his wife and used for other business and personal expenses.
The second charge again relates to purported investments concerning buses. This time the offender had put a proposal to the victim (a different person to the first victim) whereby the victim would receive $100,000 a year to assemble buses to be imported from China. There were alleged delays which the offender gave false explanations for as to the arrival of the buses to be assembled. According to the facts the venture was first mooted in 2010 but it was only in July 2014 that the arrival of the buses was said to be happening. In February 2015 the offender told the victim that two buses had arrived and two were soon to arrive and that he needed $20,000 to pay expenses relating to the delivery to Macksville which he asked the victim to pay, which he did. In March 2015 the same ruse was used for a further $15,000 which was paid in two instalments and finally on the same basis a further $5000 giving the total of $40,000. The buses never arrived.
As with the first count the money was used for the offender's own purposes.
The third count involves a third victim, and again involves buses, this time a business supposedly intending to run buses along the east coast. Initially the offender proposed a loan from the victim of $1 million which the victim could not afford. The offender later returned and sought an investment from the victim of $100,000 which was agreed to with $99,000 being transferred to the offender's account. One week later the victim said he could not continue with the agreement and the offender said he would return the investment. The offender even had the victim sign a notice of termination of contract. The money had been spent for personal reasons by the offender within one month.
In 2016 information was provided to police by the offender's wife which led to further investigation. The wife told police that she believes he may have left the country. The facts do not indicate if that was in fact the case, though other material suggests the offender did leave the country, but the reason for that is not clearly established. On 10 May 2021 he was arrested and spent the following almost 4 months in custody and has been on bail since that time.
[3]
Objective seriousness
Section 192E is an offence without any monetary upper or lower limit to the relevant advantage or disadvantage. It is relevant to take into account the amount of the financial advantage or disadvantage in question.
It is also relevant to take into account the degree of forethought given to the deception. Each of these cases shows considerable thought on the part of the offender concocting totally fabricated circumstances, clothing his deceit with supposed business ideas to engender some sense of legitimacy to deceive the unwary.
In respect of each charge, I take into account the amount involved. The motive for the offending appears to be simply monetary gain. It is not, as was found by Judge Murrell in 2007 or 2008, an attempt to prop up or bail out a struggling business.
The involvement of fake solicitors with count 1 together with the totally bogus story of a proposed purchase of a large company with investment of up to $350 million, together also with the fact that the amount involved in this charge is considerably larger than in counts 2 and 3, makes the first charge significantly more serious than counts 2 and 3. Count 1 is in the mid-range of objective seriousness.
The second and third offences are not so detailed in their deceit as they do not involve the fictitious solicitor for example. They do involve however the presentation of a totally false scenario. The deceit in both these counts was continued over a significant period. The amounts concerned whilst far from negligible are not comparable to count 1. In my view those matters are of differing objective seriousness due to the amounts involved, though count 2 has the added aspect of the almost cruel device of linking the payment to the obtaining of paid work. Both counts 2 and 3 fall within the upper reaches of the low range.
[4]
Aggravating factors
In 2007 and 2008 the offender was convicted and sentenced to 5 years imprisonment with a non-parole period of 3 years, and then 2 years 5 months with a non-parole period of 9 months in respect of significant fraud involving buses. The effect of the second sentence was to see an overall term of a non-parole period of 3 years and 9 months and an overall head sentence 6 years and 5 months. The Crown relies on this criminal history as an aggravating factor, in line with s21A. I take this into account but do so conscious of its relevance also when considering the offender's prospects so as to avoid any double counting of this factor.
The losses suffered by the victims were varied and significant, but this factor, along with the degree of planning, has been taken into account in assessing objective seriousness.
[5]
Subjective case
The offender is entitled to a 25% discount on sentence due to the timing of his plea.
His criminal history not only denies him leniency but shows that there is an added need for deterrence. That history is of the 2 earlier matters sentenced by Judge Murrell referred to above, which was a charge under what was then s176A which had a maximum sentence of 10 years imprisonment, as do the present charges. That offending occurred in about 2000. In 2013 he committed a Commonwealth offence of dishonesty for which he was sentenced in 2018, and it was also from 2013 he began the conduct amounting to the present offences.
There were 2 sentencing assessment reports, though one simply assesses the offender as suitable for community service work. The other, dated 22 March 2023, records a history from the offender. In line with the determination reached at the commencement of these reasons, I view the history given in a guarded way. The history given is of the offender having feelings of worthlessness, and that he has felt a need to prove he is worth something. He maintains he was not motivated by financial gain, but by a desire to feel validated. As noted above, I am not satisfied that this is the case.
The offender states that he accepts responsibility; he acknowledges that he knew the victims. The offender has already linked in with intervention services. The offender maintained he complied with his parole from November 2010 to November 2012. It is true he did not commit any offending in that period and may have complied with his parole, but the sentence remarks of Judge Sutherland show the company Pacific 1 was incorporated in June 2012, and it was of course used in connection with the current offences. This suggests that rehabilitation was far from complete at that time. Even if incorporating Pacific 1 was for a legitimate purpose, it was within one year after the end of parole that the offending recommenced.
In the Crown bundle were the 2 judgments of Judge Murrell, and the 2018 judgment of Judge Sutherland. The judgments of Judge Murrell as she then was, are dated 8 February 2007 and 18 September 2008. The first judgment involved a sum of $44 million and was a fraud involving finance obtained from NAB by representing that a company owned 144 used buses when in fact the buses did not exist.
Objectively the offending was considered to be towards the upper end of the range and the sentence carried a maximum term of 10 years imprisonment as in the present case
Subjectively the offender's offending was described at paragraph 19 as hoping that company could trade out of difficulties. The finding was made that the offence was committed hoping that there would be no financial loss to anyone.
The judgment sets out the personal history of the offender including that he was adopted and that there seemed to have been some falling out with the biological children of his parents. There was reference to the stress to his immediate family of wife and daughters. There was a history of his family having conducted a bus business which he and his twin brother had been conducting after the death of the father. He was at that time suffering from reactive depression in the circumstances as the Crown indeed suggested in the present case, not surprising. He is also considered by the psychologists to be quite bright in the global sense, though there was reference to a learning disability. Her Honour also had the benefit of certain references and found him to be a person of very good character which cannot be said today. Her Honour accepted a submission that it is very unlikely that he will reoffend. Her Honour then imposed a term of imprisonment of 5 years with a 3-year non-parole period
The September 2008 judgment concerned an amount of money of $65 million and again was a deception perpetrated upon NAB, this time by falsely representing that 183 new Mercedes-Benz buses existed. The surrounding circumstances of this offence were similar to the first, though the earlier sentence was imposed after a trial so did not involve any discount. The deception involved a certain amount of trickery involving the offender pretending to read out chassis numbers. Without wanting to do an injustice to her Honour's reasons, in short similar subjective matters were taken into account. The submission was made that the sentence should be fully concurrent. It was accepted that there was unfairness to the offender due to the delay in bringing the proceedings and at paragraph 31 it is noted that had appropriate enquiries being made the evidence would have been available, something which in my view can be said in the current case given the report to police in 2016 by the offender's wife. As Her Honour said the information was there to be found. Her Honour formed the view that the offender was entitled to feel a sense of finality. The argument does not sit so well with the current facts given the different victims that were involved and also given that it cannot be found here that this was an attempt to fund a failing business.
The end result was a two-year five-month head sentence with a non-parole period of nine months which had the effect that the overall sentence was a three-year nine-month non-parole period. This meant he was able to be paroled on 7 November 2010 and the head sentence expired on 7 July 2012.
The 3 charges presently before the Court (along with conduct the subject of sentence by Judge Sutherland on 9 November 2018) arose from conduct that based on the facts set out in Judge Sutherland's reasons commenced in 2012, in fact on 14 June when a company involved in this fraud was incorporated namely Pacific 1 which is a date before the parole period had even ended. That case concerned launching a GST claim in respect of the alleged purchase of buses for a price in excess of $100 million so the subject amount of the offence was some $10 million, though the charge is of dishonestly causing a risk of loss to the Commonwealth, as opposed to gain an advantage or causing a disadvantage.
At page 15 of Judge Sutherland's reasons, he proceeded on the basis that the fraudulent conduct appeared to be intertwined with an attempt to conduct a legitimate business. Later at page 16 Judge Sutherland's view was ameliorated somewhat when His Honour said the present matter appears to be intertwined with at the very least a desire to get back into the bus business and said "whether or not the entire proceedings were a mirage were nothing more than a smoke and mirrors exercise whereby the offender thought the Australian government would refund in effect more than $10 million which it had never received in the first place and then Pacific 1 would disappear into the night or whether the $10 million would somehow be used as a deposit on the $112 million worth of buses that he apparently at least had dreams if not aspirations to acquire from China I frankly do not know".
In the present case the fact is that in respect of count 1 the solicitor did not exist and that the solicitor's firm never acted. In respect of count 2 at no time was the offender in the business of importing buses. The same is not said as to count three but he had the money only for one week and failed to return it despite promising to do so. In the present case the offender admits to the psychiatrist that the money the subject of the present charges "was never to be used for the purchase of those businesses" (at p5). In contrast certainly with the basis of sentence in the Judge Murrell judgments, and arguably also to some extent with the Judge Sutherland judgment, the basis of the present sentencing is on the basis that the "fundraising" had no connection with any legitimate business activity.
Judge Sutherland SC imposed a sentence of 3 years with the offender to be released on recognisance after 2 years, with the sentence commencing on 27 July 2017. The offender was arrested in connection with the current charges on 10 May 2021. There is no suggestion of any offending occurring between his release on recognisance on 27 July 2019 to date, a period now of some almost 4 years, and a period of almost 2 years free of any corrective supervision between the end of the recognisance and current arrest.
The psychiatric report has been referred to above. It expresses an opinion of the offender suffering PTSD and lacking self-esteem. I accept the submission of the Crown that the untested history of the offender found in this report, and also the psychologist's report and the sentencing assessment report should be given little weight, or to express it slightly differently with a slight change in effect, that it should be approached guardedly. The history given is that the offender was born in Brisbane and had a twin brother. He had seven other siblings who I infer are his adopted family. He grew up in Kempsey. He said he was abused by his mother with a jug cord (1). He said he was sexually abused at the age of 10 on two occasions by a Christian brother, (2) something not raised in the two earlier proceedings before Judge Murrell but was raised in the psychological report that was before Judge Sutherland. The offender worked with his father in the bus business and continued that after his father's death in about 1982 until at least about 2003. The offender was married for 35 years and separated five years ago and with his wife had 3 children, now aged 29, 27 and 20. The offender has been estranged from the children until recently. There are testimonials from his two daughters, from which I infer the estrangement is lessening if not now overcome, which shows some support for him and assists him. I do not accept as established the matters identified by numbers in parentheses (both above and below).
Apart from the fact of adoption and the alleged treatment by his mother and the trauma of sexual abuse, also not established, this is not a case of any disadvantaged background, nor was it submitted to be. The fact of adoption of itself is not determinative of an upbringing being problematic; it may well lead to a prosperous and happy life otherwise not available. That said, viewing the material in a guarded way there does appear to exist some interpersonal relationship issues within the offender's family. I note also it is said at one stage the offender was drinking two bottles of wine a day, again something to be viewed guardedly, but even accepting that period of heavy drinking, there are no significant substance abuse issues relevant to the sentence.
The offender said to the psychiatrist that he developed gastroenterological issues as a result of the sexual abuse; (3). Not only has the offender failed to establish such a connection, that he would make this suggestion, in the absence of any supporting medical material, to the extent of a letter of referral but no letter reporting from the specialist, gives further reason to be guarded in accepting what he says. This view is supported by other parts of the report, e.g. where he gives what is described as a "contorted rationale" for going overseas (at p5), and his self-description as "brilliant" both in gaol and as a child (at p6). There is in the history given a tendency towards grandiosity, consistent with the audacious criminal behaviour he has committed.
The offender maintains to the psychiatrist that the money was to be used for the purpose of showing his family that he was worthy (4). As already noted, I do not accept that as the motivation for the offending.
The offender did express remorse to the psychiatrist. Given the guilty plea, and also the improved state of relations with his daughters, and the lack of any offending since 2015, I accept the offender is remorseful.
The offender expresses a determination to not reoffend, and says he has taken steps, such as ongoing counselling, and by ensuring he does not engage in handling money. I place little weight on the asserted non handling of money, and no weight on the counselling in the absence of any connection being established between his state of mental health and the offending. In this regard, the psychiatrist put it no higher than to say that it was "possible" there was a connection between the PTSD and the offending, and as noted, no submission was made to that effect. The psychiatrist also offered that "I wonder whether the defendant has some narcissistic personality traits, such as his sense of entitlement, being interpersonally exploitative, and lacking empathy". That description fits well with the offending targeting victims known to the offender. This view of the offender must be treated in the terms the psychiatrist expressed it, namely that he "wonders" if that be so, and whilst it does seem a good fit with the offending, the way it is expressed ("wonders") means it should not be relied on. The report notes the counselling the offender has engaged in with another psychologist, Ms Marriott, and the areas of treatment are not directed to this theory of the psychiatrist, but to the PTSD and disorders not diagnosed by the psychiatrist, namely Schizoid Personality Disorder and Obsessive-Compulsive Disorder. The psychiatrist noted Ms Marriott's view of the offender having delusional beliefs, and that he had engaged well with treatment. A difficulty for the offender is trying to make some meaningful assessment of these various mental health issues; like with the narcissistic possibility, the theory of the offender being delusional also fits with the grand scope of the deceits engaged in by the offender, which extended to involving fictitious corporate activity extending to the hundreds millions of dollars. The report notes the offender engages well with the treatment from Ms Marriott.
The psychiatrist arrived at diagnoses of PTSD and persistent depressive disorder and alcohol use disorder in remission. I take these matters into account in favour of the offender on the basis that custody will be more onerous as a result of the PTSD and possible recurrence of depression.
The report of the psychologist Thea Gumbert Jourjon is to largely similar effect and based on a very similar history with an emphasis on the childhood sexual abuse and a very expressed desire to change. The same feelings of not being accepted and a lack of sense of self-worth are noted.
At paragraph 4.2 the psychologist states that the offender would be at significant risk of recidivism should he return to a position that provides him with access to means of similar offending. It was said to be encouraging that he recognised that risk.
This report was prepared without the psychologist being aware of the present offending, and this should be borne in mind. I do not consider it renders the report of no value given the long period of no offending, or put another way, given that the present offending commenced at the same time as the offending the psychologist was aware of.
The report of Ms Marriott has been referred to above. Ms Marriott is a treating psychologist and expresses the view that custody will set back the offender's treatment. That is a valid consideration, but a difficulty here is just what should the offender be treated for, given the variations in possible conditions between the reports of the psychiatrist and psychologist.
As already noted, there are two testimonials from the two daughters of the offender. They both say he a changed man and support him. I have taken this into account.
[6]
Findings
I accept the offender's history in broad general terms to be as outlined in the judgments of Judge Murrell and Judge Sutherland, and in the psychiatrist's report, and referred to at [46] above, but noting the matters identified by numbers in parentheses have not been established. He was adopted into the King family, that family conducted a bus business based on the North Coast, which following the death of the father, the offender played a large role in conducting. Relations with his adoptive siblings frayed. The offender felt less than due to being adopted, and justifiably or not, felt he was treated differently.
I am not satisfied the offending was due to a reaction to his feelings of low self-esteem. No submission was made that there was any causal link due to his mental state. The offending occurred in my view simply to achieve financial gain, in circumstances where the offender has a past of adopting such a course. The Crown in this regard relied on Cooper [2021] NSWCCA 292 to make the point that even where an offender is suffering mental ill health, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great, with the moderation being referred to being the emphasis or weight to be given to general deterrence. I accept that submission.
I accept the offender is remorseful, and that due to his PTSD and depressive history, custody will be more onerous for him than otherwise.
The prospects of reoffending (and of rehabilitation) are in my view unfavourable to the offender. That view is qualified and tempered by the fact of the last offending being in 2015, the improved relations with the daughters, and the expression of some remorse. I note the sentencing assessment report gave an assessment of a medium to low likelihood of reoffending; that report is perhaps more accepting of the offender's history than I have found. Suffice to say I consider the likelihood of reoffending to be closer to medium than low.
[7]
Sentencing considerations, totality and delay
The purposes of sentencing are as follows:
1. To ensure the offender is adequately punished
2. To prevent crime by deterring the offender and others from committing similar offences
3. To protect the community from the offender
4. To promote the rehabilitation of the offender
5. To make the offender accountable for his actions
6. To denounce the conduct of the offender
7. To recognise the harm done to the victim of the crime and the community
In this case it is the purposes of deterrence, protection of the community and denunciation that need to be emphasised, along with recognising the harm to the victims. I am satisfied that the offender suffers from mental ill health, and it would assist to promote his rehabilitation, but I give that less emphasis here when it has not been established that to do so will render him less likely to offend. As already noted however I do take into account that custody would be more onerous due to that state of health.
It is contended for by the Crown and conceded by the offender that the section 5 threshold is crossed. I agree that no other penalty other than a term of imprisonment is appropriate. This is due to the significant sums of money involved and the serious nature of the offending, and their considered execution.
The offending is planned, calculated, with victims who are not institutions. Count 2 is particularly manipulative, if not callous, having the man promised the work pay for the offender's fictitious costs so as to give him that work. That is cruel. The other offending can be similarly characterised but to a lesser extent.
The present offending occurred in the period 2013 to 2015. That in itself is notable for 3 reasons. The first is that the offending endured over a lengthy period. The second is that there has been a long period of no offending. The third is how the delay impacts on the sentence now being determined. The first point is adverse to the offender, the second and third favour him.
I accept the point of the Crown that whilst the current offending and the Commonwealth offending have some similar aspects, specifically the utilisation of Pacific 1 in the deceit in count 1, the criminal conduct is nevertheless separate, being distinct events with different victims.
At the hearing, the Crown stated without objection that the delay in the prosecution of these charges was due to the officer in charge of the complaints made being on extended sick leave, and the officer received no assistance, that is, nothing was done in her absence. The complaints being referred to were not in evidence, but the offenders' submissions referred to a complaint by the victim of count 1 being made in 2015, that the victim of count 2 spoke to police in 2015, and made a statement on 9 July 2018 (so still before the sentence day for the Commonwealth offence) and the victim of count 3 made a report to police in August 2016. There was no objection by the Crown to this information being given in this way, and in any event the agreed fact is of the offender's wife alerting police to possible fraud in 2016. The excuse offered by the police does not lessen the point being made for the offender arguing some leniency due to delay. Whilst it is true to say the offender could have made admissions and thereby possibly avoiding any delay, the fact is the police failed to investigate the matters in a way that would allow prosecution with the Commonwealth matter.
As to the question of the delay the offender relied on the recent decision of Obbens [2022] NSWCCA 109. In that case the offender had committed a series of sexual offences. In 2016 he was sentenced for three counts occurring between 1987 and 1989. There were three separate victims. Then on 23 February 2022 he was sentenced in respect of three further charges of sexual offending which occurred in 1987 against one victim. In the time between his earlier sentence, serving his term, and his time back in the community prior to being further sentenced he had an extensive period of not offending, demonstrated insight, expressed remorse and did not minimise his offending. There was also evidence of the difficulties he had suffered in gaol. He had made positive steps towards rehabilitation.
At [18] of the judgment it was noted that the submissions concerning totality seemed to address the question of whether the judge in 2016 would have imposed a longer sentence had he been aware of the other offences. The court said that is not the correct approach, and said the real question, which might more properly be categorised as a question of proportionality rather than totality, is:
whether the total sentencing outcome (that is the 3-year full-time sentence imposed by Judge Frearson together with the 18-month community corrections order under appeal) could encompass the whole of the criminality
In this regard, concerning totality, or as the Court stated, more properly proportionality, the approach the Court endorsed was that put by Justice Dhanji in submissions, as follows:
But can I just ask you, that whole exercise [of] trying to compare [the] offence before Judge Williams and the offences before Judge Frearson, was that really necessary for totality purposes? It would have been enough for Judge Williams to say, 'well, I'm considering imposing this sentence. Now, I step back and I have a look and I make a determination as to whether having regard to all the offending, the sentence, combination of the sentence imposed by Judge Frearson and the community corrections order, is sufficient to comprehend all of the criminality involved' and if the answer to that question is it had been sufficient, well, that's enough. [There is] no need to reverse engineer Judge Frearson's sentence and ... work out what necessarily would have happened if they had all been sentenced by Judge Frearson.
The approach on this view therefore is for the sentencing judge to determine the appropriate sentence in the later case and to then as Justice Dhanji put it, step back and consider whether that sentence and the earlier sentence is proportional for the overall offending committed by the offender. Additionally, I would add, it needs to be remembered to consider the impact, if any, of delay.
The Crown relied on the case of Luong v R [2014] NSWCCA 129 as to totality and delay. In that case the facts were quite different; Mr Luong was still in custody at the time of the later sentencing, and his offending varied, with the later offence which was sentenced first being a drug importation matter, and the other offence being a fraud concerning real estate. Interestingly that case, citing Mill (1988) 166 CLR 59, stated that the approach as to totality is "to ask what would be likely to have been the effective head sentence and non-parole period if the offender had been sentenced at one time"; at [32]. This statement appears to state the approach in a way not embraced in Obbens. To quote Julius Stone however, that may be a case of a distinction without a difference, as both approaches address the issue of proportionality. One point to note however is that the Obbens approach seems to more directly address the issue of delay.
The effect delay may otherwise have on sentence was also addressed in Obbens. At [20]-[21] the Court stated:
20 The determination of the sentence for the single offence in the present case gave rise to an important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences and a fragmentation of the sentencing proceedings. It can be readily accepted that in cases of sexual offending that remain undisclosed for many years, delay will not automatically operate as a mitigating factor. In such cases the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled: see R v Cattell [2019] NSWCCA 297 and the cases there discussed. The situation is, however, quite different where a person is prosecuted and imprisoned for multiple offences and, some time after serving that sentence additional offending is brought to light. The delay between prosecution and imprisonment and a second prosecution is unlikely to be a period in which the offender went about life free from opprobrium. Further, the bringing of a subsequent prosecution, with the potential for a return to imprisonment, is an additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together. (underlining added)
The issue was explained by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-520:
"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
Applying this to the present matter, the best indicator of rehabilitation comes from the now lengthy period of non-offending (putting aside a charge of stealing in custody, the details of which are not known), rather than from the psychiatric and psychological reports. That in turn must be viewed in light of the fact that a significant part of that time has been spent either in custody, on a recognisance, or on bail. Factually the present delay and what has occurred in that time is markedly different than the facts of Obbens. Nevertheless, there has been a period of non-offending which I take into account, and there is also to be taken into account, as stated in the above excerpt from Obbens and which is simplest to simply repeat:
the additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together
I note that in Luong it was said delay does not necessarily result in leniency. Favouring the Crown's position is the absence of any direct evidence of the effect of delay on the offender. However, in my view the prospect of a return to custody is likely to make the punishment more telling rather than simply remaining in custody, and there has been an absence of offending in the meantime, resulting in some leniency being appropriate.
The above suggests that Obbens and Luong adopt different approaches, which arrive at the same result. That is unsurprising given they necessarily both refer to Mill. In Mill at [16] (per austlii) it was held the second sentencing court may in fact impose a lower head sentence that fails to adequately reflect the seriousness of the crime. This was said to be unfortunate but is to be preferred to the imposition of a longer head sentence otherwise arrived at due to delay (in that case caused by offending in different states). That same passage endorses the approach of asking what the sentence may have been if all offending was sentenced at the one time, but as just noted, also requires allowance to be made for the impact of delay. The need for proportionality overall remains intact.
It is appropriate to proceed by way of an aggregate sentence, and it is therefore necessary to first state the indicative sentences for each offence, which will be stated both before and after the 25% discount for the guilty plea. Then, in setting the appropriate aggregate sentence it will be necessary to apply the principle of totality. In that regard, I note in the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentence, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."
Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one offence can comprehend the criminality of another:
"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."
My view is that there is a basis for a degree of concurrency due to the similar modus operandi of the offending; it is the same criminal process being repeated time and again or to be precise three times or if the Commonwealth offence is included, four times, and in a broad sense is a course of conduct. At the same time as already noted I do accept the Crown position that these are four separate frauds and in my view particularly notable for having four separate victims and in the case of the matters presently being dealt with, individual citizens. My view is these victims would feel more keenly the losses they suffered than large institutions such as the National Australia Bank and its shareholders and the Commonwealth. These considerations temper the degree of concurrency to be reflected in the aggregate sentence.
I also find special circumstances due to the need for the offender to undergo appropriate counselling in order to better return to the community. Further, due to his PTSD custody will be more onerous for him. That aspect of custody being more onerous is separate to the distress referred to above of a return to custody, which is a matter I have taken into account in determining the overall sentence.
Both parties referred to some comparable cases. The limitations on the guidance this may provide is well recognised due to the undoubted factual differences that will exist. That said the Crown relied on McLaren [2021] NSWCCA 12 from [81] where a number of "comparables" were referred to, including the case of de Angelis [2015] NSWCCA 197, relied on by the offender. In both those cases, McLaren and de Angelis, the head sentence was 12 years, with non-parole periods of 9 years and 8 years respectively. The facts of McLaren were clearly objectively worse than the present, with a greater number of victims defrauded by various ruses of the offender in connection of pretence by him of some connection to investment advice or fund management, and the amount lost by the victims being significantly greater than here. There was no comparable Commonwealth offence as in the present case. There were some similarities in the subjective case, with assertions of feelings of having to prove himself, and a lack of any mental ill health that assisted. In de Angelis the modus operandi was similar in broad terms to the present case, with investment in a company procured on the back of delusions of grandiosity which were totally illusory. Again, the amounts involved were much greater than here (if the Commonwealth "risk" offence is excluded). Clarke [2019] NSWDC 2 was a case where a solicitor defrauded $9.7M and received a 6-year sentence and a non-parole period of 3 years, after a 25% discount for his plea, and 15% for assistance. In the case of Johnston [2017] NSWCCA 53 an accountant using false invoices obtained $1.25M over 3 years and received a term of 6 years 6 months with a non-parole period of 4 years.
The expected variation in these sentences can be seen. Also, some of these matters (involving a solicitor or accountant) have a breach of trust element not present in the case of Mr King.
I have considered these cases, but ultimately the current case must be determined on its own facts.
[8]
Determination
In my view it is appropriate to proceed by way of an aggregate sentence. I have assessed count 1 as being the most objectively serious of the offences. In my view prior to the 25% discount there should be an indicative term of 4 years so 3 years after the discount. In respect of count 2 which involves the amount of $40,000 there should be an indicative term of 2 years so after the discount 18 months. In respect of count 3 where the amount involved was $99,000, 2 ½ years so 22 months after the application of the discount.
Adopting the approach spoken of by Justice Dhanji in Obbens, I will first set the aggregate sentence without consideration of the earlier sentence and then stand back and see whether the overall sentence is proportional.
The aggregate sentence I arrive at is 5 years imprisonment and making a modest allowance for special circumstances, 3 ½ years non-parole period.
Standing back and considering the overall result incorporating the sentence for the Commonwealth offence would see a total head sentence of 8 years and 5 ½ years non-parole. Bearing in mind that the Commonwealth offence was considered a very serious one with a starting point of a four year sentence before discount where the maximum penalty was 5 years, but also bearing in mind the less serious nature of that offence if the maximum sentence is taken as a guide, my view is that the overall sentence is not far from being proportionate to the overall criminality though I do consider it slightly excessive. For that reason I would revise the aggregate sentence to be 4 years imprisonment with a non-parole period of 2 years and 6 months, and resulting in an "overall" sentence of 7 years with a non-parole period of 4 years 6 months.
In light of the discussion above concerning Luong, and Mill the reasoning set out in that case should also be applied. That requires consideration of what the sentence would have been if the matters had all been determined at the one time. The indicative sentences (or the aggregate sentence perhaps, depending on when that aspect is assessed) for the present offences would be higher if set in 2018 as there is not the delay factor allowing leniency, and the indicative sentence for the Commonwealth offence can be taken to be 3 years after the discount. Logically the hypothesised sentence set in 2018 would not necessarily be the same, because it would not take account of delay nor of any progress, or relapse, of an offender in terms of rehabilitation. That approach, being adopted at the later time, must then also allow for adjusting the result to allow for the intervening events and if appropriate, delay, as required by Mill. Approached that way results in the same outcome as reached above.
The offender had argued for the imposition of an Intensive Correction Order. The sentence arrived at means such an order is prohibited by reason of section 68 of the Crimes (Sentencing Procedure) Act. Accordingly, with all due respect to the submissions of the offender's counsel, it is not necessary to address that argument.
[9]
Orders
Of the three charges under s192E the offender is convicted.
The offender is sentenced to an aggregate term of imprisonment, noting the above indicative sentences and the application of a 25% discount, of a non parole period of 2 ½ years to date from 21 December 2022 and expiring on 20 June 2025 with a balance of term of 18 months expiring on 21 December 2026.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 April 2023