Kapua v R

[2023] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kapua v R [2023] NSWCCA 14

Hearing dates:

10 October 2022

Decision date:

15 February 2023

Before:

Simpson AJA at [1]
Davies J at [42]
Wilson J at [43]

Decision:

1. Leave to appeal is granted;

2. The appeal is dismissed.

Catchwords:

CRIME – APPEAL – appeal against sentence – attempt obtain financial advantage by deception – obtain property by deception - multiple counts – attempted fraud using “stolen” identities – multiple victims - deal with proceeds of crime – question of treatment of mental condition – assessment of objective gravity – question of manifest excess

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Anderson v R [2022] NSWCCA 187

Apulu v R [2022] NSWCCA 244

Barbieri v R {2016] NSWCCA 295

Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1; [2010] NSWCCA 194

DS v R; DM v R [2022] NSWCCA 156

Gaffney v R [2009] NSWCCA 160

Johnston v R [2017] NSWCCA 53

Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37

McKittrick v R [2014] NSWCCA 128

McLaren v R [2021] NSWCCA 12

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Pereira v R [2018] NSWCCA 171

R v Burke [2002] NSWCCA 353

R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Israil [2002] NSWCCA 255

R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333

R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3

R v SS (a pseudonym) [2022] NSWCCA 258

R v Stonestreet [2020] NSWCCA 212

R v Taouk (1992) 65 A Crim R 387

R v Whyte [2019] NSWCCA 218

R v Doorey [2000] NSWCCA 456

Rossal v R [2021] NSWCCA 200

Salafia v R [2015] NSWCCA 141

Siwek v R [2017] NSWCCA 178

Stroud v R [2019] NSWCCA 249

Towse v R [2022] NSWCCA 252

Williams v R [2021] NSWCCA 15

Category:

Principal judgment

Parties:

M Kapua (Applicant)
The King (Respondent)

Representation:

Counsel:
A McGrath (Applicant)
E Wilkins SC (Respondent) (Crown)

Solicitors:
Cater and Blumer (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00129629

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

8 September 2021

Before:

Grant DCJ

File Number(s):

2020/00129629

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the Local Court to nine dishonesty offences contrary to ss 192C(2) and 192E(1)(a)-(b) of the Crimes Act 1900 (NSW) with two further offences taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offences were committed by the applicant over a four month period, and each involved the assumption or theft of the identity of another individual, and the subsequent use of six stolen identities to apply for financial advantages from various institutions. The sentencing judge imposed a sentence of 6 years imprisonment with a non-parole period of 4 years and 3 months. The applicant sought leave to appeal against sentence.

The issues on appeal were:

1. whether the sentencing judge erred by not finding that the applicant’s PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence;

2. whether the sentencing judge erred by not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences; and

3. whether the aggregate sentence was manifestly excessive.

The Court held, granting leave to appeal, dismissing the appeal:

As to issue (i), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA dissenting:

1. That the sentencing judge accepted the applicant had a mental health condition does not automatically lead to a reduction in moral culpability and the application of the principle of general deterrence. In a separate dissenting judgment, Simpson AJA held that the sentencing judge misunderstood the import of the psychological report relied upon by the applicant on sentence and accordingly, failed to apply established sentencing principles in relation to offenders suffering from mental health conditions. In consequence, Simpson AJA held that the offender ought to be resentenced making due allowance for the applicant’s diminished moral culpability by reason of her diagnosed PTSD and unstable mental condition (Wilson J at [107]-[117]; Simpson AJA at [3]-[41]; Davies J at [41]).

Apulu v R [2022] NSWCCA 244; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1; [2010] NSWCCA 194; R v Stonestreet [2020] NSWCCA 212; Anderson v R [2022] NSWCCA 187; Rossal v R [2021] NSWCCA 200; Barbieri v R [2016] NSWCCA 295; DS v R; DM v R [2022] NSWCCA 156; R v Israil [2002] NSWCCA 255; R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; in R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Williams v R [2021] NSWCCA 15; Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37; Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 considered.

As to issue (ii), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA not deciding:

2. The sentencing judge’s conclusion that the offences each fell “below the mid-range” was well open to his Honour on the evidence and that an attempt to commit a crime is not automatically of lesser seriousness than a completed offence. That the majority of the applicant’s offences were unsuccessful was not a feature that greatly diminished the seriousness of the crimes (Wilson J at [118]-[131]; Davies J at [41]; Simpson AJA not deciding).

R v Taouk (1992) 65 A Crim R 387; R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3; Towse v R [2022] NSWCCA 252; Salafia v R [2015] NSWCCA; Muldrock v The Queen [2011] 244 CLR 120; HCA 39; in R v Doorey [2000] NSWCCA 456 considered.

As to issue (iii), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA not deciding:

3. The sentence imposed is not outside the available range, nor can it be regarded as unfair or unjust. The sentencing judge took all relevant features of the objective and subjective case into account, and whilst the applicant’s subjective case was a strong one, her prospects of rehabilitation were “guarded” (Wilson J at [132]-[142]; Davies J at [41]; Simpson AJA not deciding).

Siwek v R [2017] NSWCCA 178; Pereira v R [2018] NSWCCA 171; Johnston v R [2017] NSWCCA 53; Gaffney v R [2009] NSWCCA 160; Stroud v R [2019] NSWCCA 249; R v Burke [2002] NSWCCA 353; McKittrick v R [2014] NSWCCA 128; R v Whyte [2019] NSWCCA 218; McLaren v R [2021] NSWCCA 12; R v SS (a pseudonym) [2022] NSWCCA 258 considered.

Judgment

1. SIMPSON AJA: The relevant facts and circumstances of this application for leave to appeal are fully set out in the judgment of Wilson J, which I have read in draft.

2. I begin by observing that, as is obvious from the account of the offences given in Wilson J’s judgment, the objective gravity of the applicant’s criminality over a four month period is high, as indicated by the persistence with which she set about her attempted depredations, the quantum of money involved (notwithstanding the limited success of those attempts) and the nature of the offending, which was to infiltrate the personal identity of no fewer than six different victims.

3. The issue on which I wish to focus is that raised by ground 1 of the proposed appeal, by which the applicant complains that:

“The sentencing judge erred by not finding that the applicant’s PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence.”

4. The applicant’s moral culpability for this criminality is to be assessed against the backdrop of her personal history. It was not in issue that, as reported by the psychologist, Ms Emma Hubner, the applicant suffered “post traumatic stress disorder with psychotic features”, attributable to a long history of exposure to violence and deprivation.

5. The principles on which “mental illness, intellectual handicap or other mental problems” may affect the sentencing of an offender were stated by McClellan CJ at CL at [177]-[178] in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1; [2010] NSWCCA 194 and were derived from a comprehensive review of previous decisions. De La Rosa was an appeal by the Commonwealth Director of Public Prosecutions against what was asserted to be the manifest inadequacy of a sentence imposed following Mr De La Rosa’s plea of guilty to a charge of importing not less than the marketable quantity of a border-controlled drug. The principal issue in that case concerned the proper construction of the newly enacted s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), which circumscribed the approach previously taken by this Court to the determination of Crown appeals against the asserted inadequacy of sentence. For that purpose a bench of five judges was convened.

6. All judges agreed that the appeal should be dismissed. Because the real issue in the appeal was the construction of s 68A, no other member of the Court expressly agreed with that part of the judgment of McClellan CJ at CL that was directed to the question of the effect on sentencing of an offender’s mental condition. On that basis, the principles so stated could not be said to be part of the ratio of the decision. That part of his Honour’s reasons has, however, been cited and applied on countless occasions in this Court, and by sentencing courts, since 2010. A somewhat random sample includes:

R v Stonestreet [2020] NSWCCA 212 at [46], per Bell P (as the Chief Justice then was), Davies and Adams JJ, concurring;

Anderson v R [2022] NSWCCA 187 at [35], per Bell CJ, Davies and Fagan JJ;

Rossal v R [2021] NSWCCA 200 at [85]-[86] per Garling J, Bathurst CJ and Rothman J concurring;

Barbieri v R [2016] NSWCCA 295 at [53], per Simpson JA, and [142], per McCallum J;

DS v R; DM v R [2022] NSWCCA 156 at [95]-[96], per Beech-Jones CJ at CL, N Adams and Cavanagh JJ.

7. I now take [177]-[178] of De La Rosa to state authoritatively the relevant law in this State with respect to the sentencing of offenders suffering from mental illness or other mental disability or infirmity. The relevant principles, as stated by McClellan CJ at CL at [177], are:

“177   …

•   Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence …

•   It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed …

•   It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced …

•   It may reduce or eliminate the significance of specific deterrence …

•   Conversely, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … Where a person has been diagnosed with a Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public …” (internal citations omitted)

8. His Honour went on to add:

“178    I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.”

9. One of the many previous decisions to which McClellan CJ at CL referred was that in R v Israil [2002] NSWCCA 255. There Spigelman CJ, with whom Blanch AJ and I agreed, said:

“21   The significance of mental illness of offender in the sentencing exercised [sic] has long been accepted …

22   In the present case the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.

23   To the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”

10. His Honour referred to the reasons of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 as follows:

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of her or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.”

11. The Chief Justice also quoted from the reasons of Malcolm CJ in R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333; as follows:

“… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.”

12. As recorded in the judgment of Wilson J, the sentencing judge had available to him a report of an experienced psychologist, Ms Emma Hubner. Ms Hubner’s report depended substantially on a history taken by her from the applicant. The applicant gave evidence that the information she had provided to Ms Hubner was truthful. She was not challenged by cross-examination with respect to any of the history she had given. So far as is relevant to ground 1 of the present application, that history is as follows.

13. The applicant was born in April 1986 in New Zealand to a Maori New Zealand mother and a father of Scottish heritage. The applicant’s father regularly, in the applicant’s presence, violently assaulted her mother, sufficiently to result in physical disfigurement. When the applicant’s brothers attempted to intervene they, too, were assaulted.

14. Both parents drank heavily, and at different times the applicant was sent to live with relatives. An uncle, with whom she lived for a time from the age of 8, sexually abused her in a way she described as “violent and degrading”. On hearing of the abuse the applicant’s aunt “beat her mercilessly”, forced her to bathe in scalding water and scrub her body, including her genitals, with a scourer. The applicant thought her parents would come and save her, but they did not. At age 11 the applicant absconded and returned to live with her parents. She began to use alcohol and cannabis and to commit petty theft. The following year she was sent to live with a paternal aunt (with whom she had lived from about 6 months to 2 years). The aunt was emotionally and physically abusive. The applicant was later placed in foster care.

15. By 14 years of age the applicant was using illicit drugs and was rebellious. At age 16 she became involved with her first and only partner, with whom she remained for 18 years and had 7 children. The partner was violent from the start and throughout the relationship.

16. At age 28 the applicant, with her abusive husband and children, moved to Australia, where her husband’s parents (also abusive) lived. At age 31 the applicant was left by her husband, by way of payment for debts, at an apartment where she was drugged and gang raped by members of an Outlaw Motor Cycle Club and forced into prostitution. She remained there for what she believed was 6 months, before her husband returned to take her home.

17. It is unsurprising, in these circumstances, that the applicant reported to Ms Hubner that, in 2018, she had been diagnosed with post traumatic stress disorder (PTSD) and Battered Woman Syndrome; nor that she made four attempts at suicide between 2019 and early 2020 (encompassing the period of offending). The applicant reported to Ms Hubner that she was, at the time of the consultation (June and August 2021), suffering symptoms of PTSD. The applicant also reported ongoing visual and auditory hallucinations, and delusional beliefs.

18. Ms Hubner reviewed an array of psychological assessments, reports and records, which confirmed much of what the applicant had told her, including the diagnosis of PTSD. Ms Hubner reported:

“52   Ms Kapua suffers from symptoms of PTSD with Psychotic Features between 2019 and April 2020. Her symptoms of this disorder are considered the result of her extensive history of victimisation perpetrated by her family and ex-partner members.

53   Those who have experienced childhood maltreatment such as Ms Kapua report higher rates, on average, of depression, criminal activity, PTSD symptoms, body image disturbances, sexual concerns, and suicidal ideation, compared to individuals who have not been abused as children …

54   Childhood maltreatment and adult interpersonal violence can have severe consequences for survivors, including the development of psychological disorders such as PTSD …”

19. Ms Hubner then went on to say:

55   Ms Kapua’s diagnosis of PTSD and her alleged offending are considered linked. People react to threat or danger with a system comprised of biological, cognitive and behavioural responses. The biological responses involve a cascade of interdependent neurochemical changes in the brain and body. These changes influence thinking and behaviour. Normally, following the perception of threat or danger, an individual’s neurochemistry returns to normal. However, in those with PTSD, the neurochemical responses outlive the threat and inhibit the system’s ability to return to normal. Repeated exposure to traumatic events inhibits the neural system’s ability to return to normal and changes the system to anticipate and to respond to trauma. Thus, people who have experienced complex trauma often experience poor concentration, poor attention and poor decision-making and judgment.

56   Ms Kapua smoked cannabis and methamphetamines, amongst other illicit substances, around the time of the index offences. The intoxicating effects of these drugs can result in disinhibition, cognitive-perceptual distortions, attention deficits, and poor judgment. Therefore the use of these drugs around the time of her index offending may have heightened her attentional bias towards perceived threat, intensified her reactivity, and negatively impacted her ability to make sound decisions. …

Additional Considerations

59   Ms Kapua was diagnosed with Battered Women’s Syndrome (BWS) in 2018. BWS results from exposure to intense and ongoing abuse by a spouse or partner. Women with BWS experience heightened arousal and fear and many have distorted thinking. BWS is not a psychiatric illness but a cluster of depressive and anxiety symptoms related to PTSD. …

60   Although a psychiatric diagnosis cannot be given, it is my clinical opinion that Ms Kapua had BWS in late 2019. Her symptoms included distorted thinking, (ie that her partner had extreme power over and that the abuse she revealed was her own fault and deserved). She also felt powerless and unable to escape her partner’s violence (learned helplessness).

…

62   Although Ms Kapua’s symptoms of BWS are considered to have impaired her decision making, it is unlikely they would have reduced her capacity to plan or commit the index offences.

63   Ms Kapua advised that between January and April 2020, she was under a considerable amount of stress related to intrusive memories of childhood trauma, the abuse perpetrated against her by her partner, and problems related to illicit substance abuse. This stress may have increased the symptoms of mental illness (and BWS) and further reduced her capacity to make sound decisions.” (emphasis added).

20. The sentencing judge recounted much of the history contained in Ms Hubner’s report. He made specific reference to the opening sentence of [55] of the report, in which Ms Hubner drew a link between the applicant’s PTSD and her offending, but passed over the remainder of [55] until the last sentence thereof, in which Ms Hubner said that people who have experienced complex trauma “often experience poor concentration, poor attention and poor decision making and judgment”. His Honour said:

“Her condition did not mean that she did not understand the nature of what she was doing or was unable to plan in effecting these offences.

The offences involved planning and co-ordination: the use of email accounts in the names of victims and the setting out of bank accounts in the names of victims. She even changed one account online. There was a high degree of persistence on her part with the financial institutions to turn the attempts into a completed crime. If Mr McGorey’s [counsel for the applicant] argument is that over a four month period with six different victims the persistent planned and co-ordinated attempts of the offender in opening numerous bank accounts and the use of email accounts in the name of the victims are the result of ‘poor concentration, poor attention and poor decision making and judgment’, then I reject that argument.

She understood the nature of what she was doing. She is a fraudster. She has a long history, both in this country and in New Zealand, as a fraudster.”

21. In dealing with Ms Hubner’s report in this way, the sentencing judge failed to grapple with what Ms Hubner had said. He focused on “poor concentration” and “poor attention” (which he considered were belied by the nature of the offending) to the exclusion of “poor decision-making and judgment”. Ms Hubner did not say that the applicant suffered from poor concentration or poor attention, or that her offences were a result of poor concentration or poor attention. To the contrary, she explicitly said, at [62]:

“Although Ms Kapua’s symptoms of BWS are considered to have impaired her decision making, it is unlikely they would have reduced her capacity to plan or commit the index offences.”

22. Ms Hubner’s point, made repeatedly, was that the applicant’s history adversely affected her decision making: see [55], [56], [59] and [62] of her report, all extracted in [19] above. In focussing only on “planning and co-ordination” and the “high degree of persistence” with which the applicant went about her offending, his Honour ignored Ms Hubner’s multiple references to the impact of the applicant’s history and her mental condition on her decision making and judgment. It is clear from the passage of the remarks on sentence extracted above that his Honour declined to make any allowance for the effect of the applicant’s mental condition on her moral culpability (although he did expressly accept that her moral culpability was reduced by reason of her deprived background: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). While accepting that the applicant’s PTSD required “moderation of general deterrence” his Honour held that “general deterrence still has a role to play in considering the nature and type of offending”, and found that:

“the interests of rehabilitation’ play a subservant role to general deterrence and specific deterrence”.

23. I have come to the conclusion that the sentencing judge misunderstood the import of Ms Hubner’s report and accordingly failed to apply established principles relating to sentencing offenders suffering from mental health conditions. I accept, as Wilson J says, that it was (or would have been) open to the sentencing judge to find that the applicant’s mental health condition did not operate to reduce her moral culpability – but only on a proper consideration of the evidence. That was, in this case, lacking.

24. Two relevant paths to a reduction in moral culpability are recognised in the authorities. One is that commonly referred to as “Bugmy factors”; by which the effects of profound childhood deprivation are to be given full weight in the exercise of the sentencing discretion, because such deprivation “may leave its mark on a person throughout life”, and “may compromise the person’s capacity to mature and learn from experience”.

25. It has not been suggested in this application that appropriate consideration was not given to the Bugmy principles. The sentencing judge expressly accepted that “the Bugmy principles are enlivened and [the applicant’s] moral culpability for this offending is reduced”.

26. There is, however, an additional (not alternative) path to reduction of moral culpability. That is where an offender’s mental health condition or circumstances come within the De La Rosa principles. In Williams v R [2021] NSWCCA 15 Rothman J (with whom Johnson and Hamill JJ agreed) found error where a sentencing judge had made allowance for “Bugmy factors” but not for mental health issues. There is no basis for distinguishing the present case from Williams.

27. In my opinion, on a proper consideration of Ms Hubner’s report, and on the proper application of the principles stated in De La Rosa the applicant was entitled to some reduction in the assessment of her moral culpability by reference, not only to her deprived background, but also to her diagnosed mental health condition, and to more significant moderation of general deterrence, for the same reasons.

28. In my opinion error in this respect has been established. That means that it would be necessary, if other members of the court agreed, to resentence the applicant: Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37.

29. For that purpose the court received additional affidavit evidence “on the usual basis”. “The usual basis” was explained in Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25. Evidence of an offender’s progress towards rehabilitation post sentencing may be, and routinely is, received by this Court on the limited basis that it may be taken into account in the event that the court finds error in the sentencing exercise comes to resentence: Kentwell at [43]; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [28]. Betts at [11], citing. Admission of evidence “on the usual basis” received against the possibility that error is found and this Court proceeds to resentence does not justify departure from case presented at first instance, or variation of forensic choices made by (or on behalf of) the offender at sentencing.

30. Annexed to an affidavit of the applicant’s solicitor, Mr William Glowrey affirmed on 20 September 2022 was a bundle of documents produced by the Department of Communities and Justice, the Department of Corrective Services, Justice Health and the Australian Border Force. The purpose of this evidence, it may be taken, was to provide evidence of the applicant’s progress towards rehabilitation and the unlikelihood of recidivism. However, some ambiguity and even discrepancies may be discerned in the material provided.

31. A case note in the records of the NSW Department of Corrective Services dated 1 November 2021 records that the applicant “has a very supportive partner” and that she would be deported to New Zealand on completion of her sentence and that she “is happy with this as she has good family support in Newzealand [sic] and will be living with her parents”, and that “she stated that she has a very good relationship with her mother and Dad”, and, again, that “she has a very supportive partner and children whom she keeps in contact with regularly.”

32. A later case note (7 June 2022) records that the applicant has four children (she in fact has seven) and that she was “confident that [her husband] is a good father but as a husband not so good” and that “she is not sure that he will change but she appears to want [to] work on the relationship as he is the primary carer of her children”.

33. It is difficult to reconcile the notes that the applicant was happy to return to New Zealand to live with her parents with whom she has “a very good relationship” with the history taken by Ms Hubner.

34. The notes that the applicant “has a very supportive partner” gave rise to a question by a member of the court as to whether that partner was the husband who had subjected the applicant to lengthy course of domestic violence. In order to explain this, leave was granted to the applicant to file a further affidavit: such an affidavit was affirmed on 18 October 2022. In that affidavit the applicant said that her “very supportive partner” is not her abusive husband but a female (SD) with whom the applicant has entered into a same sex romantic relationship, which commenced while both were in Department of Corrective Services custody. Annexed to the affidavit was a letter written by SD in support of an application made by the applicant for review of a decision made by the Australian Government to cancel her visa. While the letter attested to a close friendship with the applicant, and the willingness by SD to offer support, no mention was made of a romantic relationship. The applicant explained that by saying that SD is still married and, while her husband was aware of the in-custody relationship between the applicant and SD, SD and the applicant were not sure that that support would continue after the applicant’s release.

35. Also annexed to the applicant’s affidavit was a letter written by herself in support of her application for review of the visa cancellation decision. In that letter she mentioned SD as one of a number of “friends”, who had guaranteed her, on her release, a job cleaning or as a receptionist.

36. Both letters were written for the purpose of the application for review of the visa cancellation decision and travelled well beyond the subject matter for which leave to file further evidence was granted. The Crown, not unreasonably, objected to receipt of evidence beyond the explanation to references of the applicant’s “very supportive partner”. I have disregarded the additional content of the letters so far as they go beyond the limited subject matter for which leave was granted.

37. Given the circumstances in which the issue arose there was, in practical terms, no opportunity for cross-examination of the applicant. No real assessment of her credibility with respect to these issues could be made. On consideration, I would accept that the applicant’s relationship with her husband has come to an end and that she is in a continuing and supportive relationship with SD. There remain, however, difficulties in reconciling discrepant accounts as recorded in the case notes with what was recorded by Ms Hubner.

38. Unaware of the relationship with SD, Ms Hubner assessed the applicant’s prospects of rehabilitation as “guarded”, an assessment with which the sentencing judge concurred. Notwithstanding the applicant’s new relationship, having regard to the applicant’s history of offending, I do not see any basis for a more favourable assessment.

39. I have come to the conclusion that, making due allowance for the applicant’s diminished moral culpability by reason of her diagnosed PTSD and unstable mental condition, the applicant should be sentenced to an aggregate term of imprisonment of 5 years and 3 months; accepting, as did the sentencing judge, that special circumstances exist warranting a modest departure from the statutory ratio between the head sentence and the non-parole period prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I would specify a non-parole period of 3 years and 8 months.

40. The individual sentences I would specify are (by reference to the table in the judgment of Wilson J):

Sequence 10:   attempt to dishonestly obtain a financial advantage by deception ($231,455): imprisonment for 2 years;

Sequence 11:   attempt to dishonestly obtain a financial advantage by deception ($530,247.24): imprisonment for 2 years 9 months;

Sequence 12:   attempt to dishonestly obtain a financial advantage by deception ($144,500): imprisonment for 1 year and 6 months;

Sequence 13:   attempt to dishonestly obtain a financial advantage by deception ($43,000): imprisonment for 1 year;

Sequence 14:   attempt to dishonestly obtain a financial advantage by deception ($181,200): imprisonment for 1 year and 9 months;

Sequence 15:   attempt to dishonestly obtain a financial advantage by deception ($244,100): imprisonment for 2 years;

Sequence 16:   deal with proceeds of crime: imprisonment for 6 months;

Sequence 17:   dishonestly obtain property by deception ($6,477): imprisonment for 9 months;

Sequence 18:   dishonestly obtain property by deception ($2426): imprisonment for 6 months.

41. The orders I would make are:

1. Leave to appeal granted;

2. Appeal allowed, sentence imposed on 8 September 2021 set aside;

3. In lieu thereof, the applicant is sentenced to a term of imprisonment made up of the non-parole period of non-parole period of 3 years and 8 months with a balance of term of one year and 9 months, the sentence to commence on 30 April 2020 and to expire on 29 July 2025. The applicant to be eligible for release on parole on 29 December 2023.

   42. DAVIES J: I agree with Wilson J.

   43. WILSON J: On 8 September 2021 an aggregate sentence of 6 years imprisonment with a non-parole period (“NPP”) of 4 years and 3 months was imposed upon the applicant, Marjorie Te Kapua, before the District Court sitting at Albury with respect to a number of dishonesty offences, to which she had earlier pleaded guilty. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) she seeks leave to appeal against that sentence.

   44. The sentence reflected nine offences, with two further offences taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It commenced on 30 April 2020 and expires on 29 April 2026. The NPP expires on 29 July 2024.

   45. The offences and indicative sentences are set out below.

Seq.	Offence	Maximum Penalty	Indicative Sentence
10	Attempt to dishonestly obtain a financial advantage by deception ($231,455) s 192E(1)(b) / s 344A Crimes Act	10 years	2 years 6 months
11	Attempt to dishonestly obtain a financial advantage by deception ($530,247.24) s 192E(1)(b) / s 344A Crimes Act Form One offence (seq. 2) taken into account	10 years	3 years and 6 months
12	Attempt to dishonestly obtain a financial advantage by deception ($144,500) s 192E(1)(b) / s 344A Crimes Act	10 years	2 years
13	Attempt to dishonestly obtain a financial advantage by deception ($43,000) s 192E(1)(b) / s 344A Crimes Act Form One offence (seq. 4) taken into account	10 years	18 months
14	Attempt to dishonestly obtain a financial advantage by deception ($181,200) s 192E(1)(b) / s 344A Crimes Act	10 years	2 years and 3 months
15	Attempt to dishonestly obtain a financial advantage by deception ($244,100) s 192E(1)(b) / s 344A Crimes Act	10 years	2 years and 6 months
16	Deal with Proceeds of Crime S 192C(2) Crimes Act	3 years	6 months
17	Dishonestly obtain property by deception ($6,477) S 192E(1)(a) Crimes Act	10 years	12 months
18	Dishonestly obtain property by deception ($2426) S 192E(1)(a) Crimes Act	10 years	6 months

The Proceedings in the District Court

46. The applicant entered pleas of guilty to the charges in the Local Court and was committed for sentence to the District Court. She appeared before the court for that purpose on 8 September 2021. Sentence was imposed ex tempore that same day.

The Crown Case

47. The Crown tendered an agreed statement of facts (of 326 paragraphs) from which the sentencing judge drew a summary in his judgment.

48. The offences were committed by the applicant over a four month period from December 2019 to early April 2020. Each involved the assumption or theft of the identity of another individual, and the subsequent use of six stolen identities to apply for financial advantages from various institutions.

49. Sequence 2, a charge of dishonestly obtaining an advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), reflected the applicant’s conduct in diverting a credit card account held by Ms M through a subsidiary of Latitude Finance known as Go Mastercard to her own address, and altering the telephone number connected with the account to her own. After altering the account details the applicant arranged for a further credit card to be issued on the account and posted to her address. Once the card arrived the applicant used it to make cash withdrawals in amounts of $300 and $500; and purchase goods on two occasions, to the values of $49.80 and $64.50. The total fraudulently obtained was $914.30. (This offence was taken into account on a Form 1 document against sequence 11.)

50. When she was interviewed about these acts the applicant falsely claimed that Ms M had given her permission to use the card to access cash and goods.

51. Sequence 17, an offence contrary to s 192E(1)(a) of the Crimes Act of dishonestly obtaining property by deception, also relates to a fraud on Ms M, involving goods to the value of $6447. On three separate occasions on 19 February 2020 the applicant contacted Telstra by telephone, each time arranging for an Apple iPhone 11Pro Max 256GB to be issued against Ms M’s account, with delivery specified to an address where the applicant could receive the phones. The telephones were delivered to the applicant on 13 March 2020. When questioned about these transactions the applicant falsely claimed that the phones were presents from Ms M.

52. A further charge, sequence 11, reflects multiple attempts to defraud Ms M, for a total amount of $530,247.24, this being a further offence contrary to s 192E(1)(a) / s344A of the Crimes Act. Between 31 December 2019 and 7 April 2020 the applicant made multiple attempts to access cash and goods against Ms M’s accounts. The charged offence encompassed the following acts, all in Ms M’s name:

1. On 31 December 2019 the applicant completed an application online for an account with the Commonwealth Bank in Ms M’s name, and with an email address including her name, but with address and telephone number being those of the applicant.

2. The applicant applied on two separate occasions to Latitude Finance for the issue of credit cards to her in Ms M’s name with the maximum available credit limit, relying on Ms M’s credit score.

3. An identical application to the Bank of Melbourne, and later another to Macquarie Bank.

4. She also applied to American Express for a credit account, again for the maximum available credit limit, later seeking to have two additional cards issued in her own name and that of an associate.

5. A further two separate applications to American Express for a credit account in Ms M’s name, on each occasion with the maximum credit limit available and, in relation to the second of those applications, for an additional card to issue in the name of the applicant, claiming to be Ms M’s “daughter”.

6. Applications to ING for a savings account and a superannuation account in Ms M’s name, together with a credit card with a credit limit of $7000.

7. The applicant made other credit card account applications: to BankWest for a credit card with a credit limit of $1000; to the ANZ Bank with a credit limit of $8500; to BankWest with a credit limit of $3500; to CitiBank with a credit limit of $10,000; to St George Bank with a credit limit of $9400; two separate applications to Macquarie Bank, on each occasion with the maximum available credit limit; to Kogan Money with a credit limit of $20,000; three separate applications to Latitude Finance, in each instance for the maximum available credit limit, with a fourth application for a credit account for $10,000, the funds falsely said to be required because of the death of a family member from the Corona virus.

1. From Westpac the applicant sought a personal loan for the largest sum available to her; and separately two credit cards from Westpac with credit limits of $9400, and $9000.

2. Applications for personal loans with Society One for $8000; from Harmoney in the amount of $20,000; from ANSA Finance for $8000; from Credit Union Australia for $8000; from Zip Money in an amount of $3000, and separately for $3000, and $1000; three separate applications to Nimble, on each occasion for sums of $5000, with a fourth loan sought from Nimble in the amount of $4200; to ClearLoans for $8000; to WISR Finance for $15,000; to Society One for $5000; to MoneyMe for $10,000; for $10,000 from Credit One; and for a further $10,000 from Money Place.

3. An application for an increase to the credit limit of a credit account already fraudulently obtained in Ms M’s name from Go Mastercard (at [9] – [10] above), from $1000 to $10,000.

4. A savings account was obtained through AMP Bank and thereafter, the applicant attempted to withdraw $25,000 from Ms M’s superannuation account, monies which the applicant claimed was needed to meet the funeral costs for her son.

5. Savings accounts were established by the applicant with BankWest, with MeBank; and – for five separate accounts, with Suncorp.

6. The applicant sought to withdraw $237,080.20, being the total balance of superannuation held by Ms M, into one of the Suncorp accounts she had opened.

7. She made a similar attempt to withdraw the whole of Ms M’s superannuation savings with Hesta Superannuation, a sum of $38,945.04.

8. An application made online with Woolworths Mobile for a mobile phone contract with a value of $1,722.

9. The applicant applied for two savings account with St George Bank, and a credit card account with the maximum available credit limit.

53. Sequence 18, an offence of dishonestly obtaining property by deception pursuant to s 192E(1)(a) of the Crimes Act, also relates to fraud against Ms M, to a total value of $2,426.

54. On 10 March 2020 the applicant placed an order online with Telstra for three sets of Beats Solo Pro wireless headphones, charged to Ms M’s account, and delivered to an address where the applicant could take delivery. On 18 March she ordered a set of Samsung Galaxy Buds +, again charged to Ms M, but delivered to her. The same day the applicant ordered an Apple Watch Series 5 GPS + Cell 44mm, charged and delivered in the same way.

55. Another of the six individuals whose identity was used by the applicant was Ms S. Using Ms S’s personal details the applicant made multiple applications to banks, credit card providers, and other financial institutions for credit or other financial advantages, with the total sought to be obtained by the applicant in the amount of $231,544.50. The whole of her conduct using Ms S’s identity, between 27 January 2020 and 10 March 2020, constituted sequence 10, an offence of dishonestly attempting to obtain a financial advantage by deception contrary to s 192E(1)(b) / 344A of the Crimes Act. This offence reflected:

1. An attempt by the applicant to obtain a credit card with a credit limit of $50,000 in Ms S’s name from the ANZ Bank.

2. The submission of an online application to Latitude Finance for a credit card with the maximum available credit limit; and another application of an identical nature to Macquarie Bank.

3. An attempt to divert Ms S’s American Express card to the applicant’s address and increase its credit limit.

4. An attempt to open an account with the Bank of Melbourne in Ms S’s name, and another such attempt with the Bendigo Bank, the latter utilising an email address in the same name as part of the verification process.

5. Through this account the applicant applied to the Bendigo Bank for a $15,000 personal loan, and a credit card with a $10,000 limit; and, using the fraudulently created bank accounts as part of her application, the applicant attempted to have a credit card issued through the NAB with a credit limit of $100,000.

6. An attempt to obtain credit cards in Ms S’s name from BankWest and ING with a credit limit for each of $12,000; with a further application to Credit Unions Australia for a card with a credit limit of $10,000.

7. Two separate applications for personal loans from Nimble, one in an amount of $5,000, and the second in an amount of $1,600.

8. Another personal loan application for $8,000 from MoneyMe.

9. An application for a credit account from Latitude Pay Australia, with a credit limit of $600.

10. Three attempts to make withdrawals against a Bendigo Bank account in Ms S’s name that contained stolen funds, for $2000, $1000, and $300; and an attempt to purchase goods using a Bendigo Bank card.

56. Sequence 12 reflects an attempt to dishonestly obtain an advantage by deception contrary to s 192E(1)(b) / 344A of the Crimes Act, and involves multiple attempted frauds upon Ms N, to a value of $144,500. The pattern of conduct is the same as for the offences concerning Ms M and Ms S, with the applicant using Ms N’s identity to establish bank accounts and seek the issue of credit cards and personal loans. The offence was constituted by the following acts, all in the name of Ms N:

1. Separate applications to the ANZ Bank and the Bank of Melbourne for savings accounts;

2. An application made with BankWest for a credit card with a credit limit of $3,500, and a further such application to the NAB for a credit account with a credit limit of $100,000;

3. An application for a credit card with Westpac with the maximum available credit limit, relying upon Ms N’s credit rating; and a similar application to the Bank of Melbourne; and

4. An application to Society One for a personal loan in an amount of $31,000, and a further such application for a $10,000 personal loan from Oz Money.

57. Sequence 16 is an offence of dealing with the proceeds of crime contrary to s 193C(2) of the Crimes Act. On 25 February 2020 the shop owner of a rural store, Ms G, arrived at the premises to find that the store had been broken into and some items stolen. Among the property taken was a Rural Bank chequebook; the book had a notation recorded inside its cover of the owner’s internet banking username and password.

58. Later, on 14 April 2020 the applicant attended the store and tried to obtain payment of $500 from Ms G for the stolen chequebook. She gave the chequebook to the owner, who declined to pay for it. The owner observed that the cover of the book with the banking details and three cheques had been torn out.

59. Sequence 4, an offence of dishonestly obtaining an advantage by deception contrary to s 192E(1)(b) of the Crimes Act, reflects the applicant’s conduct, using the stolen internet banking details referred to with respect to sequence 16, to transfer $5600 from Ms G’s account to one of the accounts fraudulently established by the applicant in the name of Ms S. (This offence was taken into account on a Form 1 document against sequence 13).

60. Sequence 13 is an offence of dishonestly attempting to obtain a financial advantage by deception, contrary to s 192E(1)(b) / s 344A of the Crimes Act, the total amount being $43,000, using Ms G’s name.

61. The applicant submitted an online application with Greater Bank on 5 March 2020 seeking a loan of $31,000 in Ms G’s name. This was followed by an application made to Zip Money for a personal loan of $5,000. The applicant also sought the issue of a credit card from Latitude Finance with the maximum available credit limit, based upon Ms G’s credit rating; and of a personal loan for an amount of $8,000 from ClearLoans.

62. Sequence 14, another offence of dishonestly attempting to obtain a financial advantage by deception, contrary to s 192E(1)(b) / s 344A(1) of the Crimes Act, encompasses multiple attempts by the applicant to defraud Ms B of a sum amounting to $181,200. The applicant used the same pattern of conduct as already outlined, using Ms B’s name and identity to gain financial advantage. Her conduct included the following, all carried out in Ms B’s name:

1. On 1 January 2020 the applicant made two separate online applications to Latitude Finance for the issue of credit cards with the maximum available credit limit. She made a similar application the same day to the Commonwealth Bank. Three days later she made another such application, to American Express.

2. The applicant applied for a credit card from CitiBank, with a credit limit of $15,000, and for a savings account and credit card from Westpac, the latter with a credit limit of $10,000. This was followed by an application to the ANZ Bank for a credit card with a credit limit of $9,500; and a further application to the same bank for a credit card with a limit of $9,000.

3. An application for a savings account and a credit card account was made to the NAB, the latter with a credit limit of $100,000.

4. Further applications for credit cards followed: to the St George Bank for an account with credit to the maximum available on the basis of Ms B’s credit rating, and to the ANZ Bank with a credit limit of $15,000.

5. The applicant sought personal loans from Zip Money in an amount of $5,000; from OpenPay for $1,700; for $8,000 from Credit Union Australia; and from Westpac for $8,000.

63. Sequence 15 reflects a similar pattern of attempts to gain large sums of money by using the identity of another person, on this occasion Ms SA, between 20 January 2020 and 23 March 2020. The offence is one of dishonestly attempting to obtain a financial advantage pursuant to s 192E(1)(b) / s 344A of the Crimes Act. Using Ms SA’s name and other relevant details the applicant acted as follows.

1. She made an application to Harmoney for a personal loan of $70,000, followed by another application for a personal loan, of $61,600 from CitiBank.

2. Two separate applications were made to the ANZ Bank for credit cards, in each instance with a credit limit of $50,000.

3. The applicant sought the issue of a Sky Mastercard from Flexicards Australia with a credit limit of $12,500.

64. During the period over which the applicant attempted to defraud these various institutions she was filmed using automatic teller machines and recorded speaking with bank tellers, the latter on occasions when she had been unable to access funds. In one such conversation with an operator with Bendigo Bank, after the applicant had been told to attend a branch with identification to make a withdrawal, she falsely said that her daughter had been killed in a car accident in the past hour and, without being able to access the Bendigo Bank account she would be unable to get to her daughter. The applicant told the operator, “Don’t you think that is fucked up? I’m not waiting, her body is not going to sit there until tomorrow because I can’t access my money”.

65. After her arrest on 30 April 2020 the applicant was asked by police about these incidents, including those where recordings of her voice or person existed. She denied any wrongdoing.

66. Setting aside those applications for a credit card with the maximum available credit limit, the total value of the frauds effected or attempted by the applicant was $1,389,979.04.

67. The applicant’s criminal history was before the sentencing court. At the time of the offending conduct she was subject to two Community Correction Orders from Victoria.

68. Her history in this State contained two entries, for an offence of shoplifting, dealt with before the Local Court at Griffith on 14 April 2021, by way of a term of 4 months imprisonment to date from 30 April 2020 and expiring on 29 August 2020; and a driving offence dealt with on the same date by way of a fine and disqualification from driving.

69. The applicant’s Victorian and New Zealand criminal histories were much more extensive.

70. In Victoria, the applicant had convictions from the period 2016 to 2019, many of them for dishonesty offences. In May 2017 the applicant was gaoled for multiple counts of obtaining a benefit by deception. In August 2018 she was again before the Magistrates Court in Victoria for similar offending and received a sentence of imprisonment. In 2019 she was dealt with for receiving stolen goods and assault.

71. The applicant’s New Zealand antecedents showed a similar history of dishonesty and other offending, commencing in 2004, with regular convictions until her last New Zealand entry, in 2013. In that period the applicant was convicted on 22 occasions for dishonesty offences, together with multiple breaches of sentencing orders.

The Subjective Case

72. The applicant, who was then aged 35, gave evidence before the sentencing court on 8 September 2021. She said that, when she saw a psychologist, Ms Hubner, she gave her a truthful account of her circumstances. She said she had 7 children aged between 3 and 16 years.

73. The applicant said that her experience of enforced prostitution occurred from mid-2016 to early 2017 and, during that time, her mother had travelled to Australia from New Zealand and taken the children back to New Zealand. When the applicant was released from prostitution, she said she also returned to New Zealand and stayed with her mother. After one month the applicant said that her partner promised he would not treat her in that way again and so she returned to him in Australia.

74. The applicant was asked to explain a police record that described the applicant as having an observable bruise to an eye in 2017, an injury she had denied at the time had been caused by her partner. The applicant said in evidence that the bruise was caused by her partner, who had “bashed” her.

75. The applicant was asked in her evidence in chief about another Victorian Police document concerning a complaint she had made of having been kicked or dragged to a car in mid-2019. The applicant said that, although she had denied to police at the time that her partner had been responsible, he had in fact been involved. She went on to describe receiving “hidings” every day at her partner’s hands and said that police were frequently called to her home in New South Wales. They were not, however, able to arrest her partner on any occasion, because he hid or ran away. She said her drug use worsened at this time.

76. When asked about the commission of the offences the applicant said:

“Q. What was the purpose of those offences, what were you seeking to do?

A. I was trying to gather money so that I could get my kids and I could leave Norman and skip States and go – go get help for my drug use, go get help with my children and go into residential rehab and – but stay away from Norman. I’ve tried, I tried, I tried to go to – I tried to ring places like the Salvation Army and other places that help with domestic violence but the thing with those is that their goal was also to send me back to New Zealand and I hate my mum for what happened to me as a kid and I don’t want to go back to New Zealand that’s where al – that’s where I was abused a lot from my family and my goal was to get my kids and go and be on my own with my children and – but not to go back to New Zealand.”

77. The applicant said that she used some of the money she obtained to fund her drug habit. She said that she was sorry for what she had done. In cross-examination she said that her motivation in committing the offences was “trying to get drugs”.

78. The applicant tendered documentary material, some of which went to a history of domestic violence.

79. A provisional Apprehended Domestic Violence Order was tendered. It showed that the applicant’s partner, Norman Te Whare, had been required to attend the Local Court at Griffith on 16 January 2020 so that the court could consider making an order restraining his conduct towards the applicant. A 12 month order was later made, on 23 November 2020, which directed Mr Te Whare not to assault, threaten, stalk, harass or intimidate the applicant, not to damage her property, and not to approach her within 12 hours of consuming alcohol.

80. The applicant’s voluminous file from the Victorian Department of Justice was tendered by her. Much of the material consists of treating and other notes that record ordinary day to day medical and dental issues that are of very of limited relevance. There are references to appointments for psychological counselling, which the applicant frequently failed to attend. In 2017 during a period of imprisonment the records refer to the applicant expressing thoughts of self-harm. In 2018 when the applicant was again incarcerated, she showed symptoms of psychosis, including auditory hallucinations. In September 2018 there was a diagnosis noted of “likely depression and PTSD” with symptoms of psychosis. The symptoms responded well to medication.

81. Justice Health NSW records from April 2020 when the applicant went into custody record the applicant as asserting that:

“…she is in jail because she was held hostage by people she owed drug debt to who also abused her and mad[e] her IV ICE then states that the only way she could get away from them was by getting credit cards and applying for loans in other people’s names so now has been done for fraud.”

82. The entry continued:

“Desperately trying to explain why she shouldn’t be in jail as sh[e] is innocent. Perception: claims to see children sometimes and hear them ( They are her children and memories of them playing and being cheeky.

Risk: denies suicidal or homicidal ideation.

Orientation: orientated to TPP.”

83. In May 2020 Justice Health notes record the applicant asserting that her violent partner “made her apply for credit cards on behalf of other people […] or else he was going to bash” her. She reported a childhood where she was exposed to violence, and a relationship where violence was common. She had a history of substance abuse. The psychiatrist who saw the applicant reported an “impression” that she had PTSD with anxiety, but no psychosis.

84. In June 2020 the notes record “no evidence of underlying mental illness”, although other entries note that the applicant described psychotic symptoms, which were considered to be transitory and related to being in custody. By late June 2020 the notes record that the applicant reported sexual abuse as a child and complained of voices in her head and that she was being monitored by drones sent by her husband and uncle. She referred to wishing to leave a “domestic violence relationship”. The author of the entries records, however, that the applicant appeared to “cheer up” markedly when told she would be relocated within the prison, with the author observing:

“She was able to laugh and joke with me about her psychotic experiences.”

85. In August 2020 the applicant was said to be in a state of distress, and in September 2020 there was a reference to the applicant using a gown as a ligature.

86. A psychological report from Emma Hubner was before the sentencing court. Ms Hubner interviewed the applicant via AVL on 18 June 2021 and again on 6 August 2021 for a total of about 2 hours. She obtained a history from the applicant, then aged 35 years, growing up in New Zealand in somewhat chaotic circumstances. The applicant complained of sexual abuse by an uncle and physical abuse by an aunt, the relatives with whom she lived from age 8 years of age. She said that she ran away when she was 11, and began using drugs and alcohol, and stealing. The applicant was placed in foster care for a time before returning to family.

87. At 16 she met her only partner, Mr Te Whare, with whom she has 7 children. The applicant complained that her partner was violent to her within two weeks of meeting him, and violence had continued throughout their 18-year relationship. At age 28 the applicant moved with her partner and children to Australia. When she was 31 years old the applicant said that her partner had left her with members of a bikie gang as payment for drug debts, and she was repeatedly gang raped, and forced into prostitution, “she believed” for a period of 6 months.

88. The applicant reported very limited education and no gainful employment.

89. She gave a history of diagnoses of PTSD and “Battered Women’s Syndrome” from 2018, with current symptoms of trauma, including intrusive thoughts and nightmares. She said that she experienced auditory and visual hallucinations of headless ghosts, and said she thought that the universe was conspiring against her. She claimed that Justice Health clinicians had queried whether she suffered from bipolar disorder or Paranoid Schizophrenia (although there is no reference to that in the records). She said she had used drugs for many years.

85. On psychometric assessment the applicant showed “marked over disclosure […] that effectively invalidated her profile” and made it impossible to interpret the resulting data. Ms Hubner observed, however, that the applicant’s results were “exceedingly high” for anxiety, PTSD, and dysthymia; with elevated results for depression and thought disorder. There were no signs of psychosis, and the applicant was fully oriented.

86. With respect to the offences the applicant said that:

“It was very wrong what I did, robbing people’s identities for my own good.”

92. She was reported to be sorry for “causing harm to the victims and breaking the law”.

93. Ms Hubner concluded that the applicant had been suffering from symptoms of PTSD with psychotic features in the four months of the offending. She thought that these symptoms likely derived from the “extensive history of victimisation” the applicant described. Ms Hubner also referred to what she described as “a diagnosis” of Battered Women’s Syndrome. She thought that the applicant’s mental conditions were linked to her offending.

A Very Brief Summary of the Submissions to the Sentencing Court

94. The Crown submitted that the offending fell somewhat below the mid-range of objective seriousness. It pointed to the applicant’s extensive history for fraud and dishonesty offences, which was submitted to disentitle the applicant to leniency as well as elevating the need for the sentence to deter and denounce the applicant and protect the community.

95. The applicant submitted that the offences were all towards the lower end of gravity as she had obtained only very limited goods and cash, and the frauds were clumsy, in that she had on occasion used her own address in establishing fraudulent accounts or seeking to do so. Considerable emphasis was placed upon the applicant’s abusive upbringing, and the violent relationship in which she had been caught since she was 16 years old. Reliance was placed on the references in prison records to the applicant’s display of psychotic symptoms, and the various diagnoses referred to from time to time. It was asserted that the applicant’s motivation in committing the offences was to secure funds to enable her and her children to leave a violent relationship. The applicant submitted that her culpability was significantly diminished because she was a “battered woman” and also because of “Bugmy” factors, being a reference to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

96. It was submitted that the sentence imposed upon her should give emphasis to her rehabilitation, with a finding of special circumstances made to permit a “lengthy” period of supervision.

The Remarks on Sentence

97. Sentence was imposed ex tempore. His Honour set out the offences and applicable maximum penalties, and then summarised the lengthy and complex facts of the offending. He referred to the offences to be taken into account on Form 1 document and observed that, in determining the sentence to be imposed for the principal offence that greater weight was to be given to personal deterrence and retribution.

98. His Honour noted that the offences were committed when the applicant was subject to Community Correction Orders imposed in Victoria. She had pleaded guilty at an early stage, and a discount on the sentence that would otherwise be imposed of 25% was allowed to reflect those pleas.

99. The sentencing judge had regard to the period of four months over which the offending occurred; the fact that six individuals had been directly affected; and the quantity of money sought to be obtained ($1,374,502), and goods and cash actually obtained ($8,873 and $6,514.30 respectively). His Honour observed that, whilst not sophisticated, the offending involved a degree of planning and coordination, and was very persistent. In terms of the objective gravity of the individual offences he concluded each should be assessed as falling below the mid-range.

100. His Honour outlined the applicant’s subjective case, referring to and quoting from the report of Ms Hubner. He accepted that “Bugmy considerations” applied, citing the domestic violence she had endured:

“The relationship was one of domination and subjugation, both mentally and physically. It was a wretched existence. It was a never-ending vicious cycle.”

101. His Honour concluded that the applicant had led a “disadvantaged life” and that “Bugmy principles are enlivened and moral culpability for this offending is reduced”. His Honour accepted that the remorse expressed by the applicant in her evidence was genuine.

102. The sentencing judge turned to give consideration to the submissions advanced by the applicant, and to the contention that the PTSD and other symptomology referred to in her case on sentence was causally linked to the commission of the offences, because these conditions had adversely affected her concentration, attention, decision making skills and judgment. His Honour observed:

“The offences involved planning and co-ordination: the use of email accounts in the names of victims and the setting out of bank accounts in the names of victims. She even changed one account online. There was a high degree of persistence on her part with the financial institutions to turn the attempts into a completed crime. If Mr McGorey’s argument is that over a four-month period with six different victims the persistent planned and co-ordinated attempts of the offender in opening numerous bank accounts and the use of email accounts in the name of the victims are as a result of “poor concentration, poor attention and poor decision-making and judgment”, then I reject that argument.”

103. His Honour referred to the applicant’s criminal history which, replete as it was with frequent convictions for dishonesty, disentitled her to leniency. He observed that, whilst retribution, deterrence and the protection of society had a role to play, it was important to ensure that the sentence imposed was not disproportionate to the objective gravity of the offending. His Honour thought that the applicant’s prospects of rehabilitation were guarded.

104. The effect of the pandemic on the conditions of custody the applicant had endured since soon after her arrest was a factor taken into account. The applicant’s need for treatment and supervision was relied upon to make a finding of special circumstances, reducing the NPP in the applicant’s favour.

The Application to this Court

105. If granted leave the applicant advances three grounds of appeal:

1. “The sentencing judge erred by not finding that the applicant’s PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence.

2. The sentencing judge erred by not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences; and

3. The aggregate sentence was manifestly excessive.”

106. For the reasons that follow, although I would grant leave to appeal, I do not regard any of the proposed grounds as established and would dismiss the appeal.

Ground One

107. The applicant argues that, although the sentencing judge accepted the opinion expressed in her report by Ms Hubner, he did not accept that the applicant’s mental condition contributed to the offending and justified a reduction in moral culpability and the need for general deterrence. She characterises his Honour’s process of reasoning as “unreasonable” in that the sentencing judge had regard to the degree of planning the offences involved when considering the degree to which her mental conditions were causative.

108. The applicant argued that the reduction in sentence afforded her in recognition of “Bugmy factors” only recognised childhood deprivation and could not reflect the applicant’s difficult circumstances in adulthood.

109. The Crown submitted that the existence of a mental illness did not automatically result in a particular sentencing outcome. It could result in a diminution of moral culpability and in the application of the principle of general deterrence or, conversely, point to a greater need for the sentence to reflect the principle of specific deterrence, but none of those consequences are automatic. The assessment of the relevance of a mental condition and whether there was any impact of that factor on sentence were matters within the discretion of the sentencing judge.

110. Part of this ground cannot be made out because it relies upon a misunderstanding or misreading of what the sentencing judge said about the applicant’s mental health condition and the application of the principle of general deterrence. His Honour did not, as the applicant complains, decline to mitigate the effect of general deterrence on sentence; in fact, he did exactly that, concluding that her mental health “requires moderation of general deterrence”.

111. The balance of the ground complains of the failure by the sentencing judge to conclude that the applicant’s moral culpability for the offences was diminished by her mental illness. The preface or subtext to that part of the ground appears to be a contention that, on his Honour accepting that the applicant had a mental health condition, he was then required to reach a conclusion that her moral culpability was diminished. No such requirement operated. This Court has made that point frequently, recently in Apulu v R [2022] NSWCCA 244, at [125] – [126].

“[…] the applicant’s contention that there must have been a reduction in moral culpability and in the application of the principle of general deterrence by the sentencing judge must be rejected. Nothing in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 mandates that a particular consequence or consequences follow from evidence of a mental condition or other impairment. The features listed at [177] of that judgment are features that may have significance in the determination of sentence; that they do have such significance is a matter to be determined by a proper assessment of the evidence in the particular case. The point was made both before and after judgment was given in De La Rosa. In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said, at 68:

“Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decisions. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment.

[…]

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise”.

In Aslan v R [2014] NSWCCA 114 Simpson J, as her Honour then was, when referring to the considerations listed at [177] in De La Rosa observed, at [34] – [35], that none of the principles were “absolute” She continued:

“Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)” (emphasis in original).

112. Whilst his Honour could have made a finding of diminished culpability, that he did not do so does not inevitably point to error. The existence of a mental health condition may, or may not, have an effect upon sentence, whether ameliorative or the opposite, with that assessment being very much a matter for the sentencing judge. It is clear that, whilst his Honour accepted that the applicant suffered from a mental health condition, he was not persuaded that it was directly linked to the commission of the criminal offences, or that it operated in the circumstances of the offending to reduce her moral culpability. That was a conclusion that was open to his Honour on the evidence.

113. It was not irrelevant to the assessment that his Honour made to observe, as he did, that these were offences that involved a degree of planning, system, and persistence, features which had a role to play in the assessment of the moral culpability of the applicant.

114. Whilst there was some evidence that pointed to the applicant’s PTSD and other problems having a role to play in her conduct, there was also evidence that suggested that an equally important or even more significant consideration was the applicant’s drug addiction, and her desire to fund her drug use. The applicant deposed in her evidence in chief that her motivation for offending was to obtain funds to escape her violent relationship and get assistance with her health, but she also said in cross examination, in what reads from the transcript as a much less prepared piece of evidence, that she committed these offences to get drugs.

115. Further, his Honour concluded that the applicant’s moral culpability was diminished because of her deprived background. There was no obligation on the sentencing judge to further diminish moral culpability on a second basis. There is no rule of sentence that requires some percentage reduction to be made for each feature that could have an impact upon moral culpability; it is a question for the sentencing judge to assess the overall effect of the evidence on an offender’s moral culpability and, taking into account all relevant evidence and law, determine a sentence that appropriately reflects the objective gravity of the crimes, and properly reflects the sentencing case.

116. It was open to the sentencing judge to assess the matter as he did. Weight was given to the applicant’s mental health throughout the sentencing exercise, including by a finding of special circumstances that reduced the NPP in the applicant’s favour. His Honour was not obliged to factor in a further reduction in sentence to reflect a diminution in moral culpability due to mental illness.

117. This ground should be dismissed.

Ground Two

118. Ground Two as filed complained of error in “not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences”. The applicant’s written submissions argued that most of the applicant’s crimes were attempts to obtain an advantage by deception, and that she gained comparatively little by the commission of these crimes. The applicant relied upon R v Taouk (1992) 65 A Crim R 387 and R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3 at [139] to argue that an attempt to commit a crime that was unlikely to succeed should be assessed as of lesser seriousness and gravity than a successful crime. In oral argument before this Court the ground shifted somewhat to become a complaint of error in the assessment of objective seriousness. Howsoever argued, this ground cannot be established.

119. It is important to note at the outset that the applicant did not, in her arguments before the sentencing judge, seek to make any submission as to the assessment of the objective gravity of the offences, perhaps because no standard NPP applies to any of her crimes. In written submissions she said only:

“Without diminishing the seriousness of the amount attempted to be obtained, it is noted:

1. The total amount of cash moneys obtained was at the low end.

2. In some instances, the Offender used her own address […]”.

120. In support of this application and in contrast to the stance taken before his Honour, the applicant argues that his Honour was in error in concluding that the offences involving an attempt were not less serious than “below the mid-range”, because each was only an attempt, his Honour did not assess the chances of success of each attempt, or the competence and seriousness of each.

121. Her complaint is one which is difficult to establish. Recently, in Towse v R [2022] NSWCCA 252 Basten AJA observed, at [12]:

“[…] there are significant difficulties in challenging the finding by a sentencing judge of the objective seriousness of the particular offending. While that assessment is an important part of the sentencing function, it is pre-eminently an evaluative exercise and usually described according to an imprecise scale.” (footnotes omitted).

122. See also Salafia v R [2015] NSWCCA 141 at [88] – [91].

123. His Honour considered each of the nine offences before the court, and the two offences on the Form 1 document, and made an individual assessment of the gravity of each as “below the mid-range” by reference to the features of the particular offences. The term “below the mid-range” is a broad one and conveys only that the crimes fell in what might be regarded as the lower half of any notional scale of objective gravity.

124. His Honour referred, in making those assessments, to the facts and circumstances of the offences, including his observation that most of the applicant’s crimes were unsuccessful, and that she had gained only a very limited amount in terms of cash and goods by committing them. His Honour clearly did not overlook the fact that most of the applicant’s crimes did not gain her any financial reward. He did not use the words “chances of success” or “competence”, but nor was he obliged to. He did refer multiple times to the “attempts” involved, and specifically to each attempt offence as such.

125. The approach taken by the sentencing judge in referring to the facts and circumstances of the offences is one which accords with what was said at [29] in Muldrock v The Queen [2011] 244 CLR 120; HCA 39 as to the importance of identifying “fully the facts, matters and circumstances” that bear upon the gravity of the crime.

126. His Honour’s conclusion that the offences each fell “below the mid-range” was well open to his Honour, whether the offence reflected a successful offence, or an attempt to commit an offence. There is no rule of law, and there is nothing in the authorities relied upon by the applicant, that establishes that an attempt to commit a crime will always be of lesser seriousness than a completed offence. What is important is to assess the facts and circumstances relevant to the offence and determine its gravity, as was observed in R v Doorey [2000] NSWCCA 456, at [29]:

“So far as it was suggested that the matter lacked objective seriousness being only an attempt, I would similarly reject that proposition. It is the case that an attempt attracts the same potential maximum penalty as the performance of the substantive crime. Every case has to be treated and assessed upon its merits. In some cases an attempt may constitute an offence of lesser seriousness, if there was a withdrawal or a failure to carry the matter through from a very early stage. In the present case, however, it was only the inability of the applicant to open the till, which meant that the substantive offence was not implemented. In the circumstances of this case I would regard the attempt as still constituting a matter of particular seriousness.”

127. The applicant’s crimes were, for the most part, unsuccessful, but that did not diminish the fact that she took multiple and sometimes complex steps to carry them out, and the attempts were, in each case, very serious. Her attempts also had a direct impact upon those persons whose identities the applicant fraudulently used in an endeavour to obtain, overall, a very substantial amount of money.

128. Before this Court the applicant appeared to suggest that the crimes involving an attempt were almost victimless, but that is to ignore the significant impact of the applicant’s crimes upon the six individuals whose financial accounts were seriously interfered with, and whose credit ratings, a valuable commodity in the modern world, were put in grave jeopardy. Two individuals saw attempts made to steal their no doubt hard earned superannuation savings.

129. That the majority of the offences were unsuccessful was not for any want of earnest, involved, and persistent efforts on the applicant’s part. This was not a feature that greatly diminished the seriousness of the crimes.

130. A conclusion that the offences fell below the mid-range was open on the evidence, and no error has been demonstrated.

131. This ground should be dismissed.

Ground Three

132. The applicant’s final ground complains that the sentence imposed upon her is unfair and unjust. It is argued that the “notional” starting point of 8 years imprisonment, reduced to 6 years by application of the 25% discount on sentence for the pleas of guilty, is demonstrative of error. It is submitted that the sentence fails to reflect that these were unsophisticated and generally unsuccessful offences.

133. The applicant points to a number of decisions of this Court which, she argues, highlight the unfairness of the sentence imposed upon her, being: Siwek v R [2017] NSWCCA 178; Pereira v R [2018] NSWCCA 171; Johnston v R [2017] NSWCCA 53; Gaffney v R [2009] NSWCCA 160; Stroud v R [2019] NSWCCA 249; R v Burke [2002] NSWCCA 353; McKittrick v R [2014] NSWCCA 128; R v Whyte [2019] NSWCCA 218; and McLaren v R [2021] NSWCCA 12.

134. “Comparable cases” are of limited assistance in determining a claim of manifest excess, as McNaughton J commented in R v SS (a pseudonym) [2022] NSWCCA 258 at [76]:

“It is well established that whilst some assistance may be obtained from looking at previous cases, the individual circumstances of each must be examined, and caution should be exercised. Even if comparative cases establish a range, that does not signify any concrete outer limit as it is simply a record of what has been done in the past. It does not fix the boundaries within which future judges should sentence. The attempt which is to be made is to discern unifying principles from past cases, and what is sought is consistency in the application of principle, not numerical equivalence: Sharma v R [2022] NSWCCA 190 at [76]-[82]; Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]”.

135. Having reviewed each of the decisions cited by the applicant and having considered the facts and circumstances of the offending and the applicant’s subjective case, the applicant’s contention that the sentence is unjust should be rejected.

136. Each of the cases cited is readily distinguished from the present case, and does little to establish a range of sentence, or one outside of which that imposed upon the applicant falls. All are very different to the present case. In Siwek there had been an earnest attempt to repay the funds obtained, strong prospects of rehabilitation, and no record for similar offences. In Pereira (where the sentence was almost identical to that imposed upon the applicant) there was a strong subjective case with good prospects of rehabilitation. In Johnston some of the monies had been repaid and there were no relevant priors. Gaffney had similar features, with some monies repaid and good prospects of rehabilitation. In Stroud there was no record for dishonesty. In Burke the sentence was one of 10 years. In Whyte there was one victim, and no prior offending. In McKittrick there had been significant steps towards rehabilitation and the offender was unlikely to offend again, In McLaren the offender had no prior criminal history.

137. These decisions are of limited assistance.

138. The sentencing judge took into account all relevant features of the objective and subjective cases and imposed a sentence that had to comprehend serious and persistent dishonesty adversely affecting six people and many financial institutions, committed to fund the purchase of drugs among other reasons, by an offender with a lengthy and very repetitive criminal history for fraud and dishonesty across two nations and three jurisdictions.

139. Whilst the applicant’s subjective case was a sad one (on the basis that such of her evidence as was unsupported by evidence independent of her could be accepted on balance) her prospects were “guarded”. There was no real basis for hope that the applicant will not return to a criminal lifestyle when she is again in the community.

140. Specific deterrence had a significant role to play in the exercise of the sentencing discretion, as did the protection of the community.

141. In my conclusion the sentence is not outside the available range and cannot be regarded as unfair or unjust.

142. This ground cannot be made out.

Conclusion

143. For these reasons I propose the following orders:

1. Leave to appeal is granted;

2. The appeal is dismissed.

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Decision last updated: 15 February 2023