HIS HONOUR: Luke Moore appears today for sentence in relation to two offences in respect of which he was found guilty by a jury at Goulburn District Court on 19 February 2015. A trial commenced on 16 February 2015.
Count 1, an offence contrary to s 192E(1)(b) Crimes Act 1900, alleges that he, between 13 July 2010 and 10 August 2012 at Goulburn and elsewhere did by deception, namely by making transactions and overdraft from a St George Complete Freedom account by way of electronic transfers, cash withdrawals and the establishment and operation of direct debit facilities dishonestly obtained a financial advantage namely credit balances with financial institutions, cash and payment of accounts.
Mr Moore I would very much appreciate if you would pay attention to what I'm saying and not communicate with people at the back of the court, otherwise I wouldn't have bothered telling you in advance what the sentence was. I do that out of courtesy to prisoners, whoever they may be, unless there's some security reason not to do so. In other words unless I feel that a prisoner is about to get 10 years imprisonment and is going to go berserk in the dock. But it's not an invitation for you not to pay attention to what's going on because the matters I'm referring to you should pay attention to as they directly relate to the circumstances in which I'm required to impose the term of imprisonment I'm imposing upon you. I won't have you in any way communicating with people at the back of the court. If they want to communicate with you they can do so elsewhere or they can leave the court. Thanks very much.
I am informed today with the assistance of the learned Crown and counsel for the accused that in respect of count 1 the total amount of financial advantage obtained by the prisoner in circumstances I will outline in a moment was $1,988,535 and some cents I assume. This offence carries a maximum penalty of 10 years imprisonment. It has no standard non-parole period.
The prisoner was found guilty of a related offence brought pursuant to a different provision of the Crimes Act alleging that he between 13 July 2010 and 20 September 2012 at Goulburn and elsewhere did deal with proceeds of crime namely a 2001 Maserati sedan (with a particular registration number), a Hyundai sedan (with a particular registration number), an Alfa Romeo sedan (with a particular registration number), a Stessl aluminium 560 Sea Hawk vessel (with a particular registration number), an Aston Martin motor vehicle, numerous paintings, numerous items of memorabilia and numerous items of jewellery, in circumstances where he knew that the items were the proceeds of crime. This offence, contrary to s 193B(2) Crimes Act 1900, carries a maximum penalty of 15 years imprisonment. It likewise has no standard non-parole period for reasons which are self-evident from the way the trial was conducted and I will reflect upon later in my remarks. Clearly Count 1 is the more serious of the two offences for which the prisoner is to be sentenced albeit that the second offence has a greater maximum penalty. This is not an uncommon situation in certain circumstances.
R v MOORE [2015] NSWDC 315 | Case summary | Zoe
Obviously it follows from what I have outlined before that the prisoner had pleaded not guilty to these charges after being committed for trial. The facts of the matter established on the evidence at trial I will summarise although I note today, very helpfully, the learned Crown Prosecutor has provided a document which I have marked as exhibit 6 that in more specific detail than I need to set out states what is said to be the "evidence" at trial.
The prisoner in March 2010 was an existing customer of the St George Bank. He had for some period of time before March 2010 operated a form of account, as I understand it a loan or overdraft account, which entitled him to trade in securities, particularly shares.
In March 2010 he opened what is described in the evidence as a St George Complete Freedom account. This was an account for which he was issued a plastic card and in relation to this account he could make deposits and he could make withdrawals from the bank, or otherwise make electronic transfers. He could establish and operate direct debit facilities and essentially operate the account as a "savings" account.
The evidence at trial established that the account had no overdraft facility. However at the time of opening the account the relevant officer of the St George Bank who opened the account for the prisoner wrongly assigned to the account what was described in the evidence as a 'relationship officer'. The prisoner's existing account or facility, line of credit or however one wishes to describe it, had a 'relationship officer' whose role as I understand it was to approve particular transactions on the account. By wrongly ascribing to the account that the prisoner had opened in March 2010 a relationship officer it meant that transactions which involved withdrawals above the available credit in the account, in particular, needed by one group of the bank to be considered by the assigned relationship officer. If no objection was taken from the relationship officer or more importantly, if an objection was made by the relationship officer, the bank would treat the transaction accordingly. With no relationship officer actually assigned to the account there was no supervision of it and as the account's overdraft, if I may call it that, ballooned over the following two years and one month. Even if referrals had been made internally by the bank for consideration of the matter there was no 'red light' flashing to stop further transactions upon the account until 10 August 2012 when the bank identified the extent of the accused's indebtedness.
I point out from the outset that when the prisoner opened the account he provided all the relevant particulars as to his own identity. There was nothing the prisoner did in any way to cause the officer of the bank to falsely assign to the account a relationship officer and it was just a matter of happenchance that the prisoner discovered subsequently that he had the opportunity to withdraw from the bank more funds than were deposited in it in the manner shown particularly in exhibit A at the trial.
It is clear on the evidence at the time of the opening of the account the prisoner's primary income was from Centrelink benefits. He may have had other assets at the time but there was no evidence of any substantial income from other means other than from what could generally be described as social security payments. In fact the history given by the prisoner to the Community Corrections Service Officer suggests that he had in fact been unemployed for a couple of years before March 2010. There is other history given by the prisoner that his previous involvement in share trading had been unsuccessful.
The prisoner from the opening of the account drew upon the account initially from the credits available to him from Centrelink payments which were usually in the vicinity as I would understand it of about $400 or thereabouts per fortnight. It is clearly established from the evidence that within a short period of time the prisoner realised that he could withdraw more from his 'Complete Freedom' account than he deposited in it, or than were otherwise available as credits in the account. His withdrawals initially over the first few months were modest but by the time of the commencement of the commission of Count 1 by reference to the particulars which are framed from the date that the prisoner ceased to receive Centrelink benefits, that is in July 2010, the prisoner clearly realised that he could by and large do what he pleased without being stopped by the bank. This is shown by the escalating size of sums withdrawn.
Although the particulars of the charge are framed as arising between the period in July 2010 until 10 August 2012 the vast majority of the funds withdrawn giving rise to the charge particularised in Count 1 occurred in the latter part of 2011. What the prisoner did over the period of time particularised is either withdraw cash for himself that he was not entitled to or transferred money by electronic transfer or other means to other accounts either controlled by him or accounts relating to corporations or business entities to whom he was indebted or from which he purchased goods.
Between December 2010 and January 2011 he transferred to the mortgage broker or mortgagee provider RAMS, $142,991, to what I understand to be a finance corporation (Credit Corporation) between July 2011 and August 2012 he transferred $8,600. He made cash withdrawals between July 2010 and August 2011 of $8,883.
As I understand it between December 2011 and 10 August 2012 he organised direct debit deduction from the St George Freedom account to the 'PayPal' facility $1,789,000 or thereabouts. He also made direct transfers to the NAB Bank to a particular account called a 'Classic' account of $27,800.
It is to be noted that so far as the monies that were paid to PayPal, a considerable sum of money were transferred to that Classic account or ultimately were transferred to other NAB accounts, I will call them sub accounts perhaps, that are particularised in some detail in the exhibit 6 which the Crown has provided to the court on sentence. These NAB accounts, one in the Gold Coast as I understand it, one at a Canberra branch of the NAB, were described as 'I-saver' accounts. There were other payments or transfers to commercial organisations such as Foxtel, the NRMA Insurance, some payments for mortgage payments and the like.
As I understand the matter when the PayPal account was closed the balance available from PayPal for recovery was $394,230. There were funds in accounts of the NAB amounting to $733,484. When the prisoner was arrested a number of the items that are particularised in relation to Count 2, these are items that were relevantly acquired by the prisoner from the proceeds of crime giving rise to his guilt in relation to Count 2, the bank seized. Those items realised on sale sums of money that are particularised in a letter to the Director of Public Prosecutions from a senior investigator of the Westpac Group. Motor vehicles were sold in total for $4600. The boat particularised in relation to Count 2 was sold for $35,536 and various items of memorabilia and items of jewellery and paintings acquired by the prisoner were sold for $4,659. I do not for one moment believe that the price obtained for the vehicles or the other items represent true value for those items. But that is a matter over which neither the prisoner or I have any control. Items sold in such circumstances usually are sold at a 'bargain basement' price.
It is the case that from the funds acquired from the St George Bank in various ways not only did the prisoner obtain particular items that are set out in Count 2 but he also lived off the proceeds of the offence committed in relation to Count 1. It is clear on the facts of the case so far as they went to demonstrate the guilt of the prisoner in relation to Count 2 that he travelled in order to purchase items, particularly a motor vehicle on the Gold Coast.
It is clear that he would have realised that he had no authority legal or equitable to the sums of the money that he withdrew from the St George account plunging the account into debit. Ultimately when the account was closed the account was overdrawn to the extent of 2.18 million dollars approximately. But a body of that sum represented interest charged by the bank ironically upon the unauthorised overdrawing of the account which the bank itself had permitted.
The prisoner made formal admissions during the trial in relation to both count 1 and count 2. He made a relevant admission that he was responsible for all relevant transactions in relation to the conduct of the Freedom Account and this of course saved the Crown attending to matters of formal proof in that regard. He also made admissions of purchasing and/or possessing various items of property particularised in count 2 of the indictment that he had purchased ultimately from the proceeds of the St George account.
I recognise that in the way the trial was conducted on his behalf skilfully by Miss Warwick and in the admissions he made towards the end of the case for the jury, the prisoner's conduct of the matter, although he did not give evidence, saved a substantial period of time that could have been taken up by the formal proof of those matters.
On the basis of the evidence so far as it goes, contained within the letter from the Westpac Bank which is directly concerned with matters of restitution and the sum of money that has been calculated to be without interest calculated directly drawn by the prisoner from the bank, the loss to the St George Bank or the Westpac Group I calculate to be approximately $676,000. In outlining the various amounts I have ignored odd cents.
Although the prisoner saved court time in the conduct of the trial and the trial was conducted very expeditiously given its potential complexity there were many eyewitness accounts and other evidence relating to the circumstances in which the prisoner purchased relevant property concerned with count 2 as well as a body of other circumstantial evidence that clearly link the prisoner with the operation of the Freedom Account, the operation of the PayPal and the NAB accounts and the purchase of relevant property as proceeds of crime relevant to count 2. There was also it must be said that ample evidence to show conduct of the prisoner which in my view was entirely inconsistent with any innocent explanation on the part of the prisoner for his operation of the St George account.
When the prisoner was arrested he exercised his right to silence. He gave little account of himself. The jury was appropriately warned in this regard. The real issue that he raised as an answer to the strength of the Crown case was, as I understand it, that it was reasonably believed by him that he had the right to withdraw the money from the St George account in various ways and spend it as he wished because he was not queried or stopped by the St George bank from continuing to operate the account even though it was overdrawn in increasingly large sums.
This claim of right if that is the way it might be described, may have some salience or strength if it related to the first few months of his operation of the account between March and July when the overdrawing of the account was modest. On 13th July 2010 the account was in debit after approximately four months of operation to the extent of about $1,900. But as I have pointed out the Crown particularised count 1 as commencing some months after the accounts were opened. It is clear on the evidence that over time the prisoner commenced plundering the account and became more audacious in his operation of the account. Conduct which was inconsistent with any reasonable understanding on his part that he was entitled to do what he did.
It is to be borne in mind there was absolutely no evidence of any agreement with the bank for him to operate the account in overdraft let alone build up an overdraft to any particular amount. The manner of his operation of the account and his use of the funds of the account involved purchasing exotic cars, expensive items of art and jewellery, paying off debts that he otherwise could not afford to pay off and putting moneys away in what the Crown described as "nest eggs." As well, the manner of clearing a great deal of the money through PayPal and transferring money from PayPal to other sources were all eloquent testament of his dishonesty in my view at relevant times.
Once found guilty of count 1, having regard to his relevant admissions, it was inevitable that he would be found guilty of count 2. If found not guilty of count 1 it would appear he could not be found guilty of count 2.
The Crown case was overwhelming and the submission skilfully put on his behaviour that he should be found not guilty because he believed he could do what he did with the St George account because the St George Bank did not stop him was, with respect, almost laughable had the situation not been so serious. The reality was in the context of all the circumstances the matter revealed in the trial that the accused had no substantial defence that had any realistic prospects of success.
I must confess to some puzzlement at the apparent dismay of the prisoner and people who support him that he was found guilty. This reaction of the prisoner, which I do not hold against him, does reflect a complete lack of appreciation of the irresistible course of the Crown case in the context of the absence any reasonable explanation by the prisoner for what had occurred inconsistent with guilt.
The prisoner was born as I understand it in May 1987 and thus, at the time of the offending, was aged between 23 and 25 years. He has one finding of guilt in his criminal history which is to my mind is completely irrelevant in this matter and I accept that prior to the commission of the offences with which I am concerned he was a person of good character. The matter dealt with in the Local Court, in 2012, is an offence, so I would understand it from the criminology of events, that is substantially subsequent to the offending with which I am concerned. He was charged on 23 June 2012 and dealt with the Local Court on 12 September in respect of failing to leave licensed premises. It is minor in any event.
The Crown has tendered a report from the Community Corrections Service to which I earlier referred and I have history from the prisoner given to the Community Corrections Service Officer as well as some history provided to Dr Stephen Allnutt, his report I will refer to in a moment. The prisoner is reported to be the beneficiary of a quote, "unremarkable and positive upbringing." He continues to have his family support and this is evidenced by the letter written by his mother which I will refer to shortly. He has a partner who continues to support him. He left school at the age of 16 years after completing year eleven, he completed his High School Certificate apparently at Tafe. He had some employment in Goulburn at a warehouse for about three years and then commenced investing in the stock market. His mother gives a more detailed history of his employment background which suggests that up until about 2008 he was generally employed in one way or another.
He did report however to the Community Corrections Service that it was in 2007 that he lost a substantial amount of money and had a considerable debt. He worked at a bank apparently as a teller in 2008 but was terminated from that position after six months due to his inability to fulfil the responsibilities of the role. One would expect he would have some knowledge of bank matters and bank operations, although as I say there is no evidence that in opening the account or in his dealings with the bank that he took advantage of some special knowledge that he had from previous employment.
He was however unemployed for two years prior to his arrest and that reflects upon what I would understand to be some financial insecurity at the time of the commission of the offences with which I am concerned. There is some history in relation to his mental health. He received some treatment for depression but did not follow up after care appointments, he was not compliant with his medication. He suffered a head injury when intoxicated at his 21st birthday celebration, his mother gives some particulars in relation to that. It would seem that if there was a severe head injury the full circumstances of that injury are still not fully known and not fully appreciated at the time. He did not follow up any treatment in relation to that head injury.
His mother writes in the reference she provided to the Court that there were, in her opinion, changes in the prisoner after that head injury and the treatment he received in relation to his depression. She said that there were changes to his personality and living skills and she gave some examples of that. She noted, after he had been committed mental health facility at Goulburn in 2008, that when he was released there was a "marked difference in his personality." That marked difference did not extend to him being other than a loving son and a brother his sibling but he is said to have had a lack of concentration. His mother says the most he could focus in concentration was for about two hours, he would leave tasks unfinished. She said that he was generally, however, a friendly, outgoing person otherwise.
He was a regular user of cannabis apparently up until his admission to the mental health facility in 2008 and, even with the benefit of Dr Allnutt's report, the picture of the effect of that is entirely incomplete on the available evidence to this Court. It may well be that the susceptibility for depressive symptoms was related to cannabis ingestion. There is no suggestion of cannabis ingestion playing a role in the commission of the current offences as he had ceased cannabis use then and at the present time says that he only uses cannabis occasionally. The chronology of events in the Community Corrections report is to be fairly said, somewhat confusing.
So far as his attitude to the offending however, his representations to the Community Corrections Service are somewhat unsatisfactory. The Community Corrections Service acknowledges or states that he,
"Concedes a degree of intent, however minimised his offending, stating that despite acknowledging the funds were not legally obtained, he accidentally came upon it and rolled with it."
This seems inconsistent with his plea of 'not guilty'.
He claimed to the Community Corrections Service officer, and made a somewhat similar claim to the psychiatrist, that he continued to access funds over the period from 2010 to 2012, "waiting for the bank to contact me." He thought he was committing what the Community Corrections Service officer called a "civil transgression versus a criminal offence." He was challenged by the Community Corrections Service officer as to his knowledge of the function and operations of banking institutions given his past employment but still maintained he thought it was a civil matter.
He said of his family, given his obviously vastly increased spending, that they "must have thought I was getting loans." In fact his father tells the Community Corrections Service officer that he had told the family that he had won 'Lotto', an explanation never questioned by his family, which seems rather extraordinary.
In any event, the prisoner has expressed some understanding of the impact of his behaviour. He has expressed some concern that the staff member who initially opened the account would be blamed for what happened. He was, "especially repentant regarding the impact on his family," noting the effect upon his mother and his father. I note that concern. It must fairly be said, there is still has an element of self interest in it.
He is assessed as being a low to medium risk of reoffending but requiring assistance in relation to emotional and personal issues and what is described as "attitude and orientation." I must confess in the context of Dr Allnutt's report I do not believe this report adequately addresses some of the underlying or, at least, contextual issues with which I am concerned.
The assessment of him reflected upon his family environment, the events of 2008, that substance abuse did not appear to be a contributing factor to his offending and his attitude now reflected some understanding that his offences were not "victimless crimes." His offences have had an impact he understands upon the community, I would imagine particularly the shareholders of the relevant banking institution, as well as his family and himself. I have taken report into account.
With regard to Dr Allnutt's report, this reflects upon the head injury occurring in 2008 and the prisoner's admission to a mental health facility. Again, the history and the detail of the history is, to my mind, not complete. Although it does appear that the prisoner was treated for some form of depressive illness, he did not pursue with vigour medical treatment after his release and certainly was not receiving any medical treatment, nor thought he needed it at the commencement of the commission of the current offences. He told the doctor that cannabis use and a breakup of a relationship may have contributed to his mindset prior to, or at the time of the commencement of his offending.
It seems to me however that the account he gave to the doctor - apparently accepted without query - of his offending bore no real relationship to the reality of the matter. He again made the claim that he was "always expecting to pay back money that he had taken from the bank."
I do not accept that to be true. Since his arrest in relation to this matter the prisoner has, according to the doctor, had considerable reactive stress and anxiety. The doctor was of the view that over the two year period that the prisoner committed the offences, the prisoner was suffering a constellation of depressive and anxiety symptoms predominantly symptoms of depression and that he was also likely, suffering the consequences of a head injury from 2008. He describes it as 'probably' frontal lobe injury which resulted in an increased propensity to impulsivity and disorganisation. I do not doubt that if he has a frontal lobe injury it could lead or probably can lead to greater impulsivity and disorganisation. However, when one has regard to the character of the offending with which I am concerned and the period of time over which it occurred, the extent of deliberation and the like, impulsivity does not arise as a relevant consideration and there is no evidence, in my view, of a lack of organisation or an attitude of "disorganisation" in the systematic way in which the prisoner over a period of time pleaded in the indictment plundered the account, transferred moneys and applied moneys for investments and purchases.
The prisoner told the doctor that he had been gainfully employed and reasonably financially well off before 2008. But, of course, by the time 2010 had come around his situation was nowhere near as secure and this was a contributing factor, in my view, to his offending. The doctor reflected upon the likelihood of recurrent mood disorder caused by frontal lobe damage. He did not think, however, that the prisoner was mentally ill. He expressed the opinion the prisoner did not suffer from a disease of the mind that deprived him of the capacity to know the nature and quality of his actions or to reason about the wrongfulness of his actions. When he wrote in January 2015, Dr Allnutt reflected upon the need for the prisoner to receive community mental health supervision but he also reflected upon a history of non-voluntary compliance with treatment that was provided to him.
Other evidence in the case from the defence, as I said, included the reference from the mother, parts of which I have referred to. I have taken into account, of course, all of her letter. The prisoner is one of four children and he was brought up to be "respectful, moral, honest, caring and with faith." He was regarded as a happy-go-lucky child and was no disciplinary problem to his parent. I accept, of course, that as his criminal history reveals there is no history of anti-social behaviour on his part and certainly on the evidence there is no sociopathic or psychopathic reason for the prisoner to behave in the dishonest way he did over the period of time that he did. The mother reflects upon the effect upon her of the prisoner's conduct. Her health has been affected. I have taken into account her understanding of the injuries and treatment he received in 2008. She reflects upon the fact that her brother can provide the prisoner with employment on his release and she also reflects upon the prisoner's understanding of the wrongfulness of his conduct, which I accept to be now the case. His family will continue to support him which I accept.
In relation to other, if I may call it, evidentiary material or relevant material tendered in addition to the evidence at trial, I have been provided with some statistics from the learned Crown relating to sentences for offending contrary to s 192E(1) of the Act. The Crown correctly points out the sample of cases reflected in the statistics between February 2010 and June 2013 or December 2013 is woefully inadequate, 10 cases. Of the 10 cases, nine offenders committing offences contrary to s 193E went to prison and one offender, that is 10% of offenders received a community service order and there is a range of sentences of imprisonment within that very limited sample.
As long ago as 1998 Spigelman CJ, newly appointed to the Supreme Court, reflected upon the inadequacy of statistics in the decision of The Queen v Bloomfield (1998) 44 NSWLR 734 particularly at 739. Admittedly, his remarks and other remarks of the Court are directed at the use of statistics at the appellate level when reviewing whether a sentence is inadequate or excessive as the case may be. But the general proposition as set out at p 739 about the caution that must be exercised in relation to statistics can be seen to equally apply at first instance. And, of course, an important matter as the Crown acknowledged was the relevant size of the sample upon which the statistical information is based. Noting the limited value the statistics have I have had regard to them.
The Crown also provided me with a number of authorities. All of them, as I understand it, are decisions of the New South Wales Court of Criminal Appeal. I do not mean this unkindly of the learned Crown, she obviously was very desirous of assisting me as she did throughout the trial, but references to cases contrary to 176A Crimes Act involving offences committed by people with either a fiduciary or other duty of trust to corporations are of little assistance given the significance of breach of trust or breach of fiduciary duty in criminal offending.
I appreciate the Crown was looking for 'fraud type' offences involving similar amounts of money. Of course, every case is individual. Comparative cases can be of some assistance. There has been, however, a range of authorities by the Court of Criminal Appeal recently, as with the High Court in the decision of Hili in 2010, cautioning against reliance upon comparative cases when individualised justice is the purpose of the sentencing exercise this was emphasised by the Court of Criminal Appeal even in guideline judgments such as Henry back in 1998. In 2014 there was a decision of MLP where McFarlane J particularised the caution that must be exercised when relying upon comparative cases. That judgment was recently cited by Bellew J with approval in another authority recently reported in a recent Criminal Law Review Newsletter. There is also the decision of RCW (No 2) [2014] NSWCCA 190 where a judge, a colleague of mine of this Court, focused too much on one comparative case and fixed the sentence, accordingly thus leading to error.
But I have had regard to the cases so far as they go. They reflect a number of varying circumstances different from the case at bar. This is an unusual case in a range of ways. But it is certainly not as amenable to comparison as can be the case in matters such as drug importation cases of supply prohibited drugs where quantities of drugs and the role of offenders can be more readily compared. Thus, having regard to all the evidence in the trial and the material produced on sentence I have taken into account the submissions of the learned counsel for the prisoner and the learned Crown Prosecutor.
The learned counsel for the accused commenced by addressing the report of Dr Allnutt in conjunction with the evidence that I have taken into account from the mother. She particularly took my attention to part of the report at p 6 and the relevance of potential or probable frontal lobe injury affecting the prisoner's conduct in particular ways. It was ultimately submitted that lesser weight would be given to general deterrence because the prisoner was not an appropriate vehicle for the "message of general deterrence."
I pause for a moment to cite the decision of DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194. In that judgment, particularly at [177]-[179], the learned Chief Judge at Common Law reflected upon, after consideration of many cases, a number of particular principles relevant to the sentencing of offenders with mental disability or mental disorder. Some of the matters he identified had been previously summarised by Sperling J in a 2004 decision of Hemsley, an unfortunate woman with a mental illness history who I had to sentence subsequent to the decision of Hemsley in relation to further armed robbery she committed, applying Hemsley principles. I have had regard to what the learned Chief Judge of the Common Law Division as he then was, now the Royal Commissioner, said about these matters.
It is true to be said that if a person suffers from a mental disability or a mental abnormality or a mental illness it may be appropriate to give less weight to the issue of general deterrence, there may be need to give greater weight, of course, to specific deterrence depending upon the character of the relevant mental disability or mental disorder. He pointed out, I should say at [178], that the character of the illness or disability or disorder need not be necessarily great for the matter to be taken into account. Of course, the fact that the prisoner has suffered a head injury in the past that 'probably' caused frontal lobe injury, although specific evidence in relation to this apart from the history given by Dr Allnutt is not provided to the Court, is a relevant matter as part of the circumstances of the prisoner.
However, in this particular matter even allowing for what the mother says to be a change in personality of the prisoner after that injury and treatment for depression, I can see no causal connection between those matters and the commission of these offences. These are offences of dishonesty committed by a person over an extended period of time with ample opportunity to reflect upon his conduct and to desist from it. They reflected no impulsivity, in my view, particularly having regard to the period of time and the number of acts committed by the prisoner and certainly reflected no disorganisation in thinking on the part of the prisoner. I am mindful of the fact that the prisoner may, exhibiting depressive symptoms, require treatment in custody that will affect the circumstances of his custody, another matter identified by McClellan J and also identified by Sperling J reflected in the authorities which they cite. But at the same time, in the context of Dr Allnutt's opinion, what particular treatment the prisoner specifically needs in custody, whether in fact the prisoner needs any particular medication or not, is not made clear. The material that arises from Dr Allnutt's report in conjunction with the mother's letter to the Court I have taken into account as relevant but it is not of such a character as to, in my view, warrant the diminution of weight to be given to general deterrence.
As to personal deterrence the imprisonment of the prisoner, the subjection of the prisoner to the court processes over a period of time will, themselves, have salutary effect. There is nothing in any of the evidence produced to suggest that any condition the prisoner has, or any injury the prisoner has, makes him a threat to the community as such. But, of course, the conduct of the prisoner that I am concerned with does reflect upon the potential of the prisoner for acting dishonestly which he did on a repeated basis.
The further submissions made on behalf of the prisoner which I accept, are that the prisoner's offences were not committed by use of any disguise. The prisoner could easily be traced. He used his own name in the opening of not only the St George account but other accounts through which money was, if I might use the expression, laundered. He did not practise on the St George Bank any continuing specific deceptions such as forging documents or forging any particulars provided to the bank, creating false identities and the like. Essentially, he took advantage of a very lax system of security that had arisen through inadvertence on the part of the unfortunate officer who had opened the account.
It was submitted that the offences were not particularly sophisticated, this so in the sense that as I said, there were no elaborate deceptions practised other than the deception pleaded and established beyond reasonable doubt in count 1 with no false identities and the like. It was pointed out and it is true that none of the actions of the prisoner in relation to count 1 and thus in relation to count 2 involved any breach of trust on his part. A very significant aggravating factor when dealing with offences involving frauds committed upon others. This, of course, is reflected as a general principle, for example, in some of the cases that the Crown referred me to involving breaches of fiduciary duty and the like by corporation officers.
With regard to the matters that arise under s 21A Crimes (Sentencing Procedure) Act 1999 particularly the aggravating factors that arise under s 21A(2) of the Act, it was accepted that first of all there was substantial loss suffered by the victim, that is, the St George Bank (s 21A(2)( g)) that the prisoner's offence in relation to count 1 and count 2 involved "a series of criminal acts" a matter to which I have earlier referred, that the offending was committed for financial gain (see (s 21A(2)(m) - (o)).
With regard to mitigating factors it was submitted that the prisoner was without prior criminal convictions, in other words, he had no prior criminal convictions at the time of the offending which is true. He was a person that had been of good character which is correct. It was submitted that he was unlikely to reoffend and had good prospects of rehabilitation. I believe on balance I could conclude in all the circumstances with the salutary experience of this litigation that the prisoner is unlikely to reoffend and that he has good prospects of rehabilitation but subject to, of course, receiving appropriate direction and counselling. He does certainly have the support of a respectable family which should have stood him in good stead before he committed these offences.
It was submitted his mental condition did not affect his prospects of rehabilitation and ultimately I conclude that that is so. I was also asked to take into account his cooperation in the conduct of the trial. I acknowledge that.
The Crown submissions stress the objective seriousness of the offending in relation to both offences having regard to in relation to count 1, the substantial sum of money taken from the bank and, of course, the substantial property identified in relation to count 2. This is self-evidently so.
It was also relevant to take into account the Crown submitted, and correctly so, that the offences were committed over an extended period of time and involved multiple acts, the matter acknowledged by the defence. The motive was financial advantage although the Crown at one stage described this as "self-gratification." Self-gratification is to my mind merely an aspect of "financial advantage." It certainly is the case that the prisoner in acquiring financial advantage sought to enrich himself in a range of ways and provide himself with items of property that provided him with considerable pleasure. The Crown submitted that there should be partial accumulation of the sentences for each offence. Particularly referring to aspects of the conduct of the prisoner in respect of the way in which he went about the transferring moneys and acquiring property and the like, such as to reflect in combination an increase of the totality of the criminality beyond that reflected solely in relation to count 1. Amongst other things, she pointed to the fact that the prisoner, as I earlier pointed out, was acquiring "nest eggs" by the building up of credits in relation to NAB accounts and the like.
This is a matter, given the substantial agreement between the parties in relation to many of the matters I am required to consider, that has caused me some concern. I am always mindful where I am dealing with multiple counts of the observations, obiter though they were, of the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 particularly at [45]. That judgment, as has been pointed out in a number of authorities including one cited by the Crown as a comparative case (the decision of Kerr v R (2008) NSWCCA 44), has led to if I may quote David Kirby J in that case: "A marked departure from previous sentencing practice" (see [32]).
I am mindful of the fact that there are a number of decisions that discuss the impact of Pearce particularly Hammoud [2000] NSWCCA 540 particularly through the judgment of Simpson J at [7]-[8].
In a decision handed down by the Court of Criminal Appeal the day before Easter as I understand it, 2 April, Pound v The Queen [2015] NSWCCA 54, the Court of Criminal Appeal set aside a sentence I had imposed in respect of a man who shot another man in the face blowing his eye out. In that matter, the sentences I imposed were in respect of two offences, an offence of recklessly causing grievous bodily harm and an offence of carry firearm with disregard for the safety of himself and another. In the context of the facts of the case by reference to Pearce principles I concluded that the totality of the criminality of the prisoner was greater by reason of the two counts standing together.
The Court of Appeal held that the conduct of the prisoner in relation to the carrying of the firearm offence was incorporated within the particulars or elements of the more serious charge. Their Honours set aside the accumulation of 18 months that I had imposed. The factor I had taken into account, which was discussed by the Court, is that the prisoner had had possession of that particular firearm for 18 months or two years before the shooting and that I had concluded on his evidence, that the applicant had placed a bullet into the gun two days previously and had forgotten that he had done so. I obviously respect the decision of the Court. It gives me cause for considering whether, in the context of what was said by Howie J in the decision Cahyadi v The Queen [2007] NSWCCA 1, particularly at [27], whether it would be appropriate to partially accumulate the sentence for one offence upon the other here.
I appreciate in fairness to the learned Crown Prosecutor we did not get to discussing the extent to which accumulation should arise, because even as I would understand it on the Crown's submissions, bearing in mind there is an acknowledgment of the need for "partial" not total accumulation that from the Crown's perspective, many acts arising under count 2 have a direct connection both temporal and otherwise with the offending reflected in count 1. I need not go through all the exhibits and the evidence to demonstrate that that is clearly so.
I am mindful of what the Court of Criminal Appeal said about this in Pound, particularly at [51] - [54] in the learned judgment of Davies J. I appreciate what matters the Crown drew to my attention as constituting further conduct on the part of the prisoner thus increasing the totality of the criminality. But the truth of the matter is, when one takes into account, to put this matter in its simplest terms, that the prisoner committed count 1, as the Crown herself said eloquently, to enrich himself and for "self-gratification", what occurred in relation to count 2 was a manifestation of that 'self-gratification', a relevant matter to sentencing the prisoner in relation to count 1.
Although the matter is finely balanced, in the context of the observations of the Court of Criminal Appeal in decisions such as Hammoud, to which I referred, and, of course, Johnson v The Queen [2004] HCA 15, I have concluded the sentence for count 2, although it will be less than that in relation to count 1, bearing in mind count 1 is the more serious offence, notwithstanding the lower maximum penalty, will be wholly concurrent with the sentence in relation to count 1.
With regard to the further submissions of the Crown, the Crown correctly pointed to the need to consider the totality of criminality which I have dealt with. There was a concession that there were aspects of the matter, even though it was a high level of criminality, that diminished that criminality. The absence of breach of trust, the absence of deliberate acts of forging of documents and the like. The Crown submitted that the health issues of the prisoner were not causally related to the prisoner's offending and thus did not diminish the weight to be given to general deterrence, and I accept, in general terms, that the offending of prisoner gives rise to consideration of general deterrence.
In that regard, of course, I have had particular regard to s 3A of the Act of the various purposes of sentencing. The only purpose of sentencing that I could say is not, to my mind, of salience in this sentencing exercise is the need to give weight to the protection of the community. The prisoner is not a threat to the community, as that matter may be understood when considering that particular purpose of sentencing. But other matters of general and personal deterrence, denunciation, accountability, adequate punishment and the like are clearly relevant, as is the promotion of the rehabilitation of the prisoner.
With regard to mitigating factors, I referred to that matter when I dealt with the submissions of learned counsel for the prisoner. I accept, as I have said earlier, the aggravating factors she identified. I have already indicated in the course of discussion that I could not conclude that the offending was relevantly "planned" initially, but it is to be fairly said that the offending of the prisoner reflects an element of deliberation on his part over an extended period of time which is to be taken into account. That deliberation is a matter that works, in my view, against the acceptance of a causal relationship between the conditions identified by Dr Allnutt and the offending with which I am concerned.
As I have earlier pointed out, the prisoner from sometime after July 2010, with increasing intensity, preyed upon, if I could use that expression, the incompetence or failings of the bank in its capacity to supervise the account and that is demonstrated clearly by the particular way in which the prisoner conducted the account and distributed the funds through PayPal through the latter part of 2011.
It is clear from the evidence that over a period of time the prisoner became more and more focussed on achieving specific aims, such as discharging mortgage obligations and acquiring specific items of property, that are particularised in relation to count 2. The evidence of deliberation and pre-meditation on the prisoner in respect of count 1, is reflected, and this is another reason for coming back to consideration of concurrency of the sentences, in the conduct of the prisoner to commit the various acts that give rise to his guilt in relation to count 2, such as travelling to Queensland, negotiating bank cheques, entering into specific negotiations to acquire particular property and arranging for the transfer of that property to himself. It is correct ultimately that the objective seriousness of the offending in relation to count 1 and count 2 is considerable when one has regard to the extent of funds obtained and the period of time over which the conduct occurred, a loss to the bank. But on the other hand, whilst the laxity of the procedures of the St George Bank does not mitigate the prisoner's offending, the laxity of a bank is one matter that contributed to the lack of need for the prisoner to enter into any deliberate planning for the commission of the offences.
That finding has to be weighed against, of course, the weight to be given to the absence of criminal history and the other mitigating factors that arise from the conclusions I have reached.
Thus, hopefully, taking all matters into account given the brief opportunity I have had to reflect I will impose the following sentences.
I point out that I have sentenced the prisoner after morning tea, following the completion of the submissions. But the reason I have sentenced the prisoner today is that I would be unavailable to sentence the prisoner for another five weeks and I do not think it is fair to the prisoner or his family that he should be kept in a state of uncertainty in relation to this matter.
Could you stand up, thanks very much, Mr Moore.
In relation to count 1 you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of two years and three months, to commence on 18 February 2015. Therefore, your non-parole period will expire on 17 May 2017.
I have made a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. In my view, it is appropriate that you receive an extended period of supervision by the Community Corrections Service or the Parole authority to enable you to receive professional assistance to adjust to community living and to direct you as to any medical or psychiatric treatment or psychological treatment that is required and to receive direction in relation to those matters advised by the Community Corrections Service. I do not in your case that this is the first time you have been sentenced to a term of imprisonment and I have also noticed, of course, the difficulties that you may encounter in custody in a range of ways, particularly in terms of receiving appropriate treatment in custody.
In relation to that sentence I fix a balance of sentence of two years, three months. The total sentence is four years and six months. The total sentence will expire, on my calculation, on 16 August 2019.
In respect of count 2 you are convicted and in respect of that matter I sentence you to a total of three years imprisonment. However, that term of imprisonment will run concurrently with the terms of count 1, thus it will commence on 18 February and will expire on 17 February 2018. In respect of that sentence I fix a non-parole period of two years and three months. That non-parole period commencing on the same date and expiring on - the same date, that is 17 May 2017 is the other sentence, it being required to be served entirely concurrently, on my calculation, roughly, taken over the morning tea adjournment. There is no finding of special circumstances in relation to that sentence, but that is addressed by the orders I have made in relation to the other sentence.
Madam Crown, is there any issues as to dates and the like?
MCSPEDDEN: Just, your Honour, in respect of count 1--
HIS HONOUR: Yes, I might have given a wrong date there did I?
MCSPEDDEN: --the conclusion of the total term you said was, I think, 16 August 2019 - 17.
HIS HONOUR: No I thought I said that, it should be the 17th of the relevant month of the year. I apologise. The starting point is the 18th of the relevant months and the relevant conclusion date will be the day before which will be the 17th, and I do remember saying the 16th. Thank you.
Ms Warwick, any matters from you?
WARWICK: No thank you, your Honour.
[2]
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Decision last updated: 23 December 2015