Massey v The Queen

[2015] NSWDC 350

District Court

New South Wales

Medium Neutral Citation:	Massey v R [2015] NSWDC 350
Hearing dates:	18 August 2015
Decision date:	19 August 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Appeal allowed. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 the sentences are set aside. Instead of the sentences imposed by the magistrate, under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, the appellant is found guilty of the offences and is discharged on condition that she enter into a good behaviour bond for 12 months.
Catchwords:	CRIMINAL LAW – appeal against sentence – fraud offences – appellant partner in business – appellant’s business partner refused to sign documents requiring director’s guarantee – appellant forged partner’s signature and sent documents – nature and circumstances of offending – whether remorse genuine – no prior criminality – character references from well-regarded people in the community – under personal stress at time of offending – extenuating circumstances – publication of judgment important in this case
Legislation Cited:	Crimes Act 1900 (NSW), ss 253(b)(ii), 254 Crimes (Appeal and Review) Act 2001 (NSW), s 20(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10
Category:	Principal judgment
Parties:	Narelle Therese Massey (Appellant) Regina (Respondent)
Representation:	P Thompson,Kennedy & Cooke (Appellant) B Page, Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2015/144570
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 23 June 2015 Before: Dick LCM File Number(s): 2015/144570

Judgment

1. This is a case which has taken me some time to consider. An experienced businesswoman was in partnership in a local retail business. She and her business partner had different roles and they did not get on well with each other. In those circumstances, on one occasion, the woman forged her partner’s signature on a document that, in her opinion, should have been submitted and which her business partner did not agree to submit. She then sent the document off. The woman’s name is Narelle Therese Massey.

2. On 23 June 2015 Ms Massey pleaded guilty in the Local Court here in Bega before his Honour Magistrate Dick to two charges. The first is called making a false instrument to obtain a financial advantage. That is an offence against s 253(b)(ii) of the Crimes Act 1900 (NSW). Parliament regards the offence as very serious and has fixed a maximum of ten years imprisonment to the crime. The jurisdictional limit of his Honour was, however, two years imprisonment. The second offence that Ms Massey pleaded guilty to is using a false document to obtain a financial advantage. That is an offence against the following section, s 254 of the Crimes Act. Parliament again has fixed a maximum ten years imprisonment to that crime, bearing in mind that his Honour had a jurisdictional limit of two years.

3. His Honour convicted Ms Massey on her plea of guilty and ordered that she enter into a good behaviour bond for 12 months. That is an order which his Honour made under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Ms Massey has appealed against the sentence. Through her solicitor, Mr P Thompson, she asks me to exercise the power I have under s 10 of the Crimes (Sentencing Procedure) Act to not record a conviction and to put her on a good behaviour bond.

4. Mr Thompson called his client to give evidence. She explained the circumstances of the business. She was responsible for selling and marketing certain computer products. Many of them were Apple computers. She had two suppliers and one of them dropped out. That put pressure on her to find a second supplier. Having two suppliers was important for obtaining the products at reasonable rates. She found a second supplier, but the second supplier needed documents filled in for credit. The documents required a director’s guarantee. That is not unusual, of course, in business. However Ms Massey’s partner in business refused to sign the director’s guarantee. He offered a good reason not to sign it; he had received advice not to sign a director’s guarantee. As a lawyer one can understand the basis for that advice being given. Ms Massey persevered in trying to convince her partner to sign but he maintained his refusal.

5. Ms Massey was about to go on leave - her husband needed to have a serious operation. She was going to take a week or ten days off. Christmas was approaching and she was aware of her need to have supplies of the computer products available. She then took a step which was not only very foolish, but was criminal. She wrote on the finance application form in the place provided for the director’s guarantee a signature which purported to be that of her business partner. She did not obtain his permission. She then took a second criminal step by sending the form by fax to the company which required it. She added that she knew that that company would require the original of the documents. She filed the application away and then attended to her husband and his medical circumstances.

6. In other words, what Ms Massey had done was to forge her business partner’s signature on a document which she then proceeded to submit to a third party. It was an application for credit. That kind of behaviour in business is obviously completely unacceptable and no doubt one reason why Parliament has fixed such a significant penalty to the crime.

7. When Ms Massey went to Canberra, her husband’s operation did not proceed well. Regrettably, he had a stroke and remained in the intensive care unit for nearly 40 days and then spent a lot of time in rehabilitation. In the meantime, back here in Bega, the false document was found and her business partner had commenced proceedings, understandably, to dissolve the partnership.

8. Ms Massey acknowledged in cross‑examination by Mr B Page who appears for the respondent to the appeal, the Director of Public Prosecutions, that her business partner had made it very clear that he was not interested in signing the document and she said she took the steps in order to “get the ball rolling”. She knew that the company would require further documents such as financial documents to be submitted before it was approved. She acknowledged, also in cross‑examination, that she knew that her partner had not signed the document because it exposed him to a personal liability. I should add that the application was for a line of credit of some $30,000.

9. To her credit Ms Massey has no previous convictions whatsoever. She also has two references from well‑regarded people within the community. One is the manager and director of a local business who has known Ms Massey for around ten years. To her credit it appears that she has explained to both referees the circumstances of her offending, although obviously emphasising the stress and pressure that she was feeling. One of the referees said that he could “fully understand that personal pressure and frustration with her business partner may have led her to mark the document as she did”. He referred to her husband’s illness as well. He attested to her community mindedness and her family orientation and said that he accepted Ms Massey’s account that she “marked the document in a time of sheer stress and frustration”. He added significantly that he had “never had any occasion to have any doubts as to her honesty in any way, shape or form. I don’t think that one small mistake should ruin her reputation and be the cause or barrier to her future employment”.

10. The other referee has known Ms Massey for about 13 years as a work colleague and then as a friend. She said how Ms Massey had conducted a successful bookkeeping business “where confidentiality and honesty are paramount”. She said that she believed “Narelle to be an honest and reliable person, she is recognised as an upstanding business woman within our community”. She and Ms Massey “have discussed this matter at length. I know she was under a lot of pressure with trying to run her business with a conflicting business partner”. That referee said that Ms Massey “has indicated to me she is very regretful for the actions she took in marking the signature area of the credit application”. The referee also acknowledged the “added stresses with her husband needing” surgery. This witness also acknowledged Ms Massey’s contribution to the community and to her family. That witness added her opinion that Ms Massey’s “lapse in judgment should not be allowed to tarnish her good character and limit her future opportunities”.

11. I took a day to consider this case because I really was of two minds about how to deal with it. Mr Page’s position on behalf of his client was that this was ultimately not a case for not recording a conviction. He emphasised the stress which Ms Massey had placed upon her own view and her own opinion about how the business should be conducted and that as a result of that view she had forged and submitted the document clearly against her partner’s wishes. He made the telling point that it appeared that Ms Massey had not expressed her genuine remorse. I think there is some force in that last point, although I expect that Ms Massey has probably become more remorseful over the last couple of days.

12. Mr Thompson emphasised the purposes of sentencing which are provided for in s 3A of the Crimes (Sentencing Procedure) Act which include the rehabilitation of his client. Of course they also provide for adequate punishment and protection of the community from the offender. Section 10 of the Crimes (Sentencing Procedure) Act sets out factors which I can take into account. They include a person’s character and antecedents as well as the “extenuating circumstances in which the offence was committed”.

13. On balance, I am going to make an order under s 10 of the Crimes (Sentencing Procedure) Act. My reasons are these. Ms Massey has no criminal record whatsoever. She is now 52 and has not come to the notice of the law at all. Secondly, she is obviously well regarded by two members of the community who have known her for some time including in a business context and who have been informed of her offences. They both emphasise the “lapse in judgment” which Ms Massey has made. The third factor is the circumstances of the offending. Although her behaviour was unacceptable, she was under some personal stress at the time clearly because of her husband’s illness and surgery. So far as the business was concerned it was coming to an important time of the year. None of these reasons is an excuse for what she did but they may be regarded as “extenuating circumstances” so far as the section is concerned.

14. Although as a result of my order Ms Massey will have no criminal conviction, I do propose to order a copy of this judgment and in due course it will be published. I regularly publish my judgments and sentences and I indicated to Mr Thompson that I may well do so in this case. I regard it as important for this reason. For any members of the community who would want to find out, they should know the full circumstances of the offences and the reasons behind the orders which I have made. That includes, of course, references to Ms Massey’s lack of a criminal record and the good character references but it will also include the details of what she did and the circumstances in which she did it. Normally members of the community would be put on notice by the very fact that Ms Massey has a conviction. She will no longer have a conviction. Although this has been dealt with in open court there may not be many members of the community who are present and that is why I propose to publish my reasons in due course.

15. Accordingly I am going to allow the appeal and the formal orders which I make are these. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence. Instead of the sentence imposed by the magistrate, under s 10 of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction I find Ms Massey guilty of the offences and I make an order discharging her on condition that she enters into a good behaviour bond for 12 months. The conditions of the bond are these:

1. That she be of good behaviour;

2. That she notify the registrar of this Court of any change in her address;

3. That she attends court if she receives a notice to do so.

HIS HONOUR:    Ms Massey I have given my reasons. You have heard those. I have got to give reasons for decisions, most of the decisions, almost all of them that I make and you have heard those reasons. You will not have a conviction. I have accepted Mr Thompson’s submissions. You are still on a good behaviour bond for 12 months. That is probably going to date from today now. You have got to stay out of trouble. I do not think you will have any difficulty with that. If you change your home address you have got to let them know here so they can contact you if need be from the Court and if you get a notice to come back to court you have got to do that. Now Mr Thompson will take you out to the registry now where you will fill in a good behaviour bond. Do you understand that?

APPELLANT: Yes I do, thank you.

THOMPSON: Just to confirm that will be in relation to both charges?

HIS HONOUR: Say that again?

THOMPSON: A bond in relation to both charges?

HIS HONOUR: I’m never sure of that.

THOMPSON: I heard your discussion a little bit earlier in relation to another matter.

HIS HONOUR: Yeah I’m never sure. Yes. To be careful we think we need two separate bonds. Why don’t I make two separate orders.

16. There will be one good behaviour bond in respect of each offence and the orders will be exactly the same in respect of each offence.

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Decision last updated: 08 February 2016