NSW Police Force v Michael James Walsh

[2014] NSWLC 21

Local Court

New South Wales

Medium Neutral Citation:

NSW Police Force v Michael James Walsh [2014] NSWLC 21

Hearing dates:

7 October 2014 and 18 November 2014

Decision date:

18 November 2014

Jurisdiction:

Criminal

Before:

Dare SC LCM

Decision:

1) Sequences 1 to 5 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 November 2014 (expire on 17 January 2015). 

2) Sequences 6 to 10 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 December 2014 (expire on 17 February 2015).

3) Sequences 11 to 16 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 13 months from 18 February 2015, with a non-parole period of 3 months expiring on 17 May 2015, and a balance term of 10 months commencing on 18 May 2015 and expiring on 17 March 2016.

The total effective sentence is a term of imprisonment of 16 months from 18 November 2014 and expiring 17 March 2016, with a non-parole period of 6 months expiring on 17 May 2015. As a condition of the parole, the Offender is directed to be subject to the supervision by the Probation & Parole Service for such period as that Service deems necessary and to undertake any program or treatment recommended by the Service. 

Catchwords:

SENTENCING – multiple fraud offences – lengthy prior history of similar offending – relevance and use of prior record in sentencing – factors of universal application to fraud – accumulation of sentences

Legislation Cited:

Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 22, 25(2), 50, 51, 58
Crimes Act 1900 (NSW), s 192E(1)(b)
Criminal Procedure Act 1986 (NSW), s 267(2)

Cases Cited:

Aslett v R [2006] NSWCCA 360
Assi v R [2006] NSWCCA 257
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Le v R [2006] NSWCCA 136
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Nguyen v R [2007] NSWCCA 14
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Falzon and Pullen (Court of Criminal Appeal (NSW), 20 January 1992, unrep)
R v Hawkins (1989) 45 A Crim R 430
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Hill [2004] NSWCCA 257
R v Houlten [2000] NSWCCA 309; 49 NSWLR 383
R v Huynh [2008] NSWCCA 16
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Mears (1991) 53 A Crim R 141
R v Mille (Court of Criminal Appeal (NSW), 1 May 1998, unrep)
R v Mmk [2006] NSWCCA 272
R v Molesworth [1999] NSWCCA 43
R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376
R v Murtaza [2001] NSWCCA 336
R v Pont [2000] NSWCCA 419; 121 A Crim R 302
R v Sellen (1991) 57 A Crim R 313
R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383
R v Todorovic [2008] NSWCCA 49
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Woodman [2001] NSWCCA 310
R v Zamagias [2002] NSWCCA 17
Rios v R [2012] NSWCCA 8
Veen v R (No 2) [1988] HCA 14; 164 CLR 465

Texts Cited:

Holy Bible, Acts 9: 4 - 6

Category:

Sentence

Parties:

New South Wales Police Force (Prosecution)
Michael James Walsh (Defendant)

Representation:

D Middleton (Police Prosecutor)
Barron Law (Australia) Pty Ltd (Defendant)

File Number(s):

2014/00232129 (H 55362745: 1-16)

Publication restriction:

Nil

​REMARKS ON SENTENCE

1. The offender, Michael James Walsh, stands for sentence having entered pleas of guilty to 16 counts of fraud better known as “Dishonestly Obtain Financial Advantage by Deception”. The total amount of money actually obtained was $15,550. The offences are in contravention of s 192E(1)(b) of the Crimes Act 1900 (NSW) and carry upon conviction on indictment a penalty of imprisonment for 10 years, however, the Local Court is restricted by s 267(2) of the Criminal Procedure Act 1986 (NSW) to a penalty of imprisonment for 2 years or a fine of 100 penalty units. This needs to be read in conjunction with s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets numerical limitations on consecutive sentences up to 5 years.

2. It will be helpful to set out the offences in a chronological table.

3. Number	Date of Offence	Amount obtained
   1.	8 June 2011	$900
   2.	14 January 2013	$1,200
   3.	31 January 2013	$200
   4.	1 March 2013	$3,400
   5.	1 March 2013	$1,100
   6.	17 to 18 March 2013	$2,000
   7.	2 April 2013	$2,000
   8.	8 April 2013	$1,000
   9.	8 April 2013	$1,000  (Attempt)
   10.	12 April 2013	$600
   11.	21 May 2013	$1,000
   12.	2 July 2013	$500
   13.	4 July 2013	$300
   14.	5 July 2013	$300
   15.	7 July 2013	$1,000
   16.	5 August 2013	$250 (Attempt)

SALIENT FACTS

4. As is usual in the Local Court the facts were presented in the form of a Fact Sheet which was handed up without objection or caveat. I will proceed to sentence on this basis. The Court also received a lengthy Bail Report and I will have more to say about its content later in these Remarks.

5. The offender is a single man residing in Young, New South Wales. He receives a disability pension and it is said he has a significant gambling addiction. Over the past 15 months NSW police have been conducting investigations into a large number of fraud offences that are alleged to have been committed by the offender across Australia over a period of two years. That said, I wish to make it perfectly clear that I am only dealing with the charges before this Court and not with alleged activities from somewhere else not further particularised.

6. Identified throughout the investigation was a particular modus operandi used by the offender. He obtained a pre-paid SIM card, registered it in a fictitious name and then he conducted searches via the Internet of townships across Australia for small businesses such as bakeries, coffee shops, butcher shops and hotels. He would call up to 20 such businesses within the town purporting to have electrical, phone and computer goods for sale from his relative’s business that was liquidating and offer these goods for sale to the staff at greatly discounted prices.

7. Prospective buyers agreed to purchase some of the goods. In turn, they were requested by the offender to put a deposit into one of his 14 bank accounts by a certain time, usually within the hour. Once the deposit was made, the offender went to an automated teller machine ("ATM") near his location and withdrew the deposited funds. The goods were never delivered and the offender disposed of the mobile SIM card to prevent contact.

8. I turn now to summarise the facts of the individual charges.

9. Sequence 1. About midday on 8 June 2011 the offender, using a pre-paid mobile number, called the Lakeside Takeaway, 20 Wombat Street, Forbes, and spoke with Michelle Turner. She agreed to purchase a television, two laptop computers, a video camera, washing machine, three iPhones and three iPads for a total of $2,500. The offender requested a deposit of $250 to be paid into a nominated account at Central West Credit Union which was done. The goods were never delivered. Bank records indicate that a short time after the deposit was made the offender withdrew it from an ATM in Yass. At the same business, the offender spoke to Danielle Turner who agreed to purchase two televisions, four iPhones and a Nokia mobile phone for a total cost of $2,200. Two separates deposits totalling $650 were made into the nominated account. The goods were never delivered. A short time after the deposit was made the offender withdrew it from an ATM in Yass.

10. Sequence 2. On 13 January 2013 the offender, using a pre-paid mobile number, called the Corner Café and Bakehouse, Freeman Drive, Cooranbong and spoke with Iain McAuley. He agreed to purchase four televisions at a cost of $2,400. On 14 January 2013 the offender again called the Corner Café and Bakehouse and requested a deposit of $1,200 to be deposited into a nominated Westpac Bank Account which was done. The goods were never delivered. Bank records indicate the offender withdrew this deposit a short time later.

11. Sequence 3. On 31 January 2013, using a pre-paid mobile number, the offender called Joe’s Meats Butchery in Westfield, Kotara. Using the same modus operandi he spoke with Dylan James who agreed to purchase electrical goods. An agreed deposit of $200 was paid into a nominated Westpac Bank Account. The goods were never delivered. A short time later the deposit was withdrawn from the ATM in Young.

12. Sequence 4. On 1 March 2013 Daniel Schmidt was referred to the offender by a friend (one of several unidentified victims) as he had discounted electrical and computer goods for sale. Mr Schmidt was provided with a mobile phone number and he phoned, speaking with a male that identified himself as ‘Michael’. After being advised of the type of electrical and computer goods the offender had for sale, Mr Schmidt phoned several relatives and put together a list of items he wished to purchase on his behalf and that of his family. He agreed to purchase three televisions, three iPads, three Dyson vacuum cleaners and two iPhones for a total of $3,400. The offender requested that amount to be paid into his nominated account at Bendigo Bank which was done. The goods were never delivered. Bank records show that a short time later the deposit was withdrawn from the account.

13. Sequence 5. On 1 March 2013, Mr Ian Skillen arrived at work at the Calwell Butchery, Calwell Shopping Centre, Calwell, ACT where he was advised by a colleague that a man called ‘Michael’ was selling discounted electrical goods. Mr Skillen phoned ‘Michael’ on his mobile phone. Mr Skillen agreed to purchase two washing machines, a clothes dryer, three laptop computers, seven iPhones and a television. The offender requested a deposit of $600 be lodged into his nominated Bendigo Bank Account which was done. The goods were never delivered. A short time after the deposit was made it was withdrawn.

14. Sequence 6. On 17 March 2013 the offender using a pre-paid mobile number, rang Ken’s Kepnock Butchers, 87A Elliott Heads Road, Kepnock, QLD and spoke with Mr Kenneth Barritt. Mr Barritt agreed to purchase $15,000 worth of goods consisting of televisions, iPads and iPhones. The offender requested a deposit of $2,000 be paid into his Bendigo Bank Account which was done. The goods were never delivered. Bank records indicate that $1,000 of that deposit was withdrawn immediately after deposit from an ATM in Boorowa and $990 withdrawn from an ATM in Young the next day.

15. Sequence 7. On 2 April 2013 the offender rang the Kincumber Computer Store, 74 Hastings Road, Kincumber and spoke to Narelle Villa. She agreed to purchase several televisions andiPads for a total of $10,000. The offender requested a deposit of $2,000 be paid into his account at Bendigo Bank which was done. The goods were never delivered. Bank records indicate that $1,000 was withdrawn immediately after deposit from an ATM in Young and the remaining $1,000 was withdrawn from the same location the next day.

16. Sequence 8. On 8 April 2013, using a pre-paid mobile, the offender rang the Akwa Surf Shop, Shop 1, Princes Highway, Milton, and spoke with Alexandra King. She agreed to purchase some electrical items. The offender requested a deposit of $1,000.00 be paid as soon as possible into his account at Bendigo Bank which was done. The goods were never received. The deposit was withdrawn immediately afterwards from an ATM in Young.

17. Sequence 9. On 8 April 2013 Ms Ann Westgate was advised by another party of a person selling discounted electrical and computer goods. She was provided with a mobile phone number and contacted a male person who identified himself as ‘Michael Walsh’. She agreed to purchase some electrical and computer goods to the value of $2,900. The offender requested a deposit of $1,000 be paid into his account at Bendigo Bank as soon as possible which was done. The goods were never received at the expected delivery time whereupon Ms Westgate made contact with her bank and found her deposit had not yet been withdrawn from the offender’s account. She was able to receive her deposit back.

18. Sequence 10. On 12 April 2013 using a pre-paid mobile number, the offender, using the same modus operandi, rang The Shed on Lachlan, 113 High Street, Hillston and spoke to Bruna Crowe. She agreed to purchase a television, freezer, two door refrigerator and a laptop at a total cost of $1,900. The offender requested a deposit of $600 be paid into his account at Bendigo Bank as soon as possible which was done. The goods were never received. The money was withdrawn immediately after deposit from an ATM in Young.

19. Sequence 11. On 21 May 2013, using a pre-paid mobile number and the same modus operandi, the offender rang Charlton Timber and Hardware, 8 Mildura Way, Charlton, VIC and spoke to Mr Darren Good. He agreed to purchase six televisions, four iPads and a couple of iPhones for a cost of $5,000. The offender requested a deposit of $1,000 be paid into his account at Bendigo Bank as soon as possible which was done. The goods were never received. Bank records for the offender indicate that $960 was withdrawn immediately after deposit from an ATM in Young.

20. Sequence 12. On 2 July 2013, using a pre-paid mobile number, the offender phoned Churchill Tattoo Shop, 27 Churchill Street, Childers, QLD and spoke to Mr Warren Smith. He agreed to purchase two Toshiba laptops at a cost of $800. The offender requested a deposit of $500 to be paid as soon as possible into his account at Wide Bay Bank in the name of ‘Jamie Light’, the birth name of the offender, which was done. The goods were never received. Bank records indicate that $490 of the $500 was withdrawn immediately after deposit from an ATM in Harden, a small town near Young.

21. Sequence 13. On 3 July 2013, using a pre-paid mobile number, the offender rang the True Blue Motor Inn, 1012 Yamba Drive, North Rockhampton, QLD and spoke with Ms Toni Preston. She agreed to purchase a larger screen television and other electrical items for her staff. The offender requested a deposit of $300 be paid as soon as possible into his account at Wide Bay Bank in the name of ‘Jamie Light’. The offender was insistent that this deposit be done immediately and Ms Preston attended the branch of Wide Bay Bank in person to make the deposit. The goods were never received. Bank records indicate that the $300 was withdrawn immediately after deposit from an ATM located at the Caltex Service Station, Wagga Wagga.

22. Sequence 14. On 5 July 2013, using a pre-paid mobile number, the offender rang The Ambassador Hotel, 2 Sydney Street, Mackay, QLD. He spoke with a staff member who declined his offer but provided him with a phone number for her employer who may be interested. The offender then phoned Ms Mary-Ann Refalo who agreed to purchase a television, refrigerator, freezer and a MacBook Pro laptop at a cost of $2,000. The offender requested a deposit of $300 and insisted it be paid into his account at Wide Bay Bank as soon as possible. Ms Refalo went personally to the bank to make the deposit. The goods were never received. The money was withdrawn immediately after deposit from an ATM located at the Caltex Service Station, Wagga Wagga.

23. Sequence 15. On 7 July 2013, using a pre-paid mobile number, the offender rang the Bargara Bakery and Coffee Shop, Cnr. Davison and Bargara Street, Bargara, QLD. He spoke with a staff member who declined his offer but the staff member provided Ms Christine Stefanides with the offender’s mobile number as she was interested in purchasing some goods. She phoned the number and spoke to the offender who identified himself as ‘Jamie Light’. Ms Stefanides agreed to purchase four refrigerators, three washing machines, a laptop computer, a Samsung Galaxy mobile phone and several iPhones. The offender requested a deposit of $1,000 be paid as soon as possible into his account at Wide Bay Bank which was done. The goods were never received. Bank records indicate that $990 of the $1,000 paid was withdrawn within one minute of the deposit from an ATM in Young.

24. At this time, and unknown to the offender, he was the subject of extensive investigations by police for these fraud matters and was being monitored through his mobile phone and bank account usage. His Wide Bay Bank account was in fact frozen by the bank due to the investigation by police.

25. Sequence 16. On 5 August 2013, using a pre-paid mobile number, the offender rang Kaffiend Coffee Shop, Robina Town Centre, Robina, QLD and spoke to Ms Jennifer Gillard. She agreed to purchase a laptop at a cost of $500. The offender requested a deposit of $250 be paid as soon as possible into his Wide Bay Bank account in the name of ‘Jamie Light’ which was done. Due to his insistence that the money be paid quickly, Ms Gillard had her husband attend the branch of Wide Bay Bank next door to the Coffee Shop to make the deposit. The goods were never received. Bank records indicate that the offender attempted to withdraw the money using an ATM in Young, however, the transaction was declined.

26. Using the same pre-paid mobile number, the offender phoned the Robina Branch of the Wide Bay Bank where he was informed that his account was frozen due to the investigation being conducted by police. He was provided with the Officer-in-Charge’s ("OIC") name and station by the Bank. He then contacted Goulburn Police Station in an attempt to speak with the OIC but to no avail. With breath-taking audacity, using the same pre-paid mobile number, the offender re-contacted the Robina Branch of Wide Bay Bank, this time purporting to be ‘Detective Troy Miller from Surry Hills Police Station’ and advising the teller that the NSW investigation had been ‘sorted out’ and that he authorised the release of the funds in the frozen account. With some perspicacity the teller recognised the voice of the offender as the same caller who had initially phoned the branch to inquire about the account. The teller challenged the validity of the call whereupon the offender terminated it.

27. There is no NSW police officer by the name of ‘Troy Miller’. The funds deposited into the offender’s account at Wide Bay Bank have now been returned to Ms Gillard.

28. The Facts Sheet recites that at the time of these offences, the offender had been actively avoiding police and was wanted on 12 outstanding arrest warrants in NSW, and arrest warrants in QLD and the ACT – all for fraud matters of the same nature. Through the use of electronic surveillance, the offender was identified as being in his hometown of Young. On 15 August 2013, police executed two search warrants at the residence of the offender’s brother and parents where he was located and arrested. He was charged by virtue of the arrest warrants and was sentenced to terms of imprisonment at Wagga Wagga Local Court on 25 September 2013, the non-parole period of which concluded on 14 August 2014.

29. The Facts Sheet also recites that further investigations were conducted into the present charges and from bank records obtained from Westpac Bank, Bendigo Bank, National Australia Bank and Wide Bay Bank, it is asserted that the offences for which the offender is presently before the Court appear to be in the minority with upwards of 50 deposits of the same nature and amounts being made by people who are unable to be identified. It is asserted that in one two-month period between September 2011 and October 2011 there were 14 deposits into the offender’s Westpac Bank Account totalling $10,700 and in January 2013 there were 10 deposits into the same account totalling $3,700. Between 2 and 5 July 2013 there were 10 deposits into the offender’s Wide Bay Bank account totalling $6,600.

30. The Facts Sheet recites that the offender does not work. He is in receipt of a disability pension which is paid into another bank account on a fortnightly basis. In light of the further materials gathered, investigating police are of the opinion that given the large volume of deposits and withdrawals occurring in each specific bank account around the same times and dates of the present charges before the Court, there is an irresistible inference to be drawn that all are deposits fraudulently obtained using the offender’s modus operandi over a number of years.

4. Quite obviously the offender is not to be punished for uncharged acts alleged, however, the relevance of the preceding paragraphs at [29] and [30] is strongly suggestive of a wider course of similar fraudulent conduct and that the present charges should not just be viewed in isolation. Then, there are his antecedents.

Criminal Antecedents

32. The offender was born in 1975. The Bail Report comprises some 46 pages. Sometimes it is difficult to make sense out of it all. The offender is known by a number of names including Michael James Walsh, Jamie Michael Walsh, Ben Wright, Jamie Michael Light and Jamie Light. His is a record which does him no credit whatsoever. It begins in the Children’s Court for offences of dishonesty commencing in 1990. His first recorded offences for Dishonestly Obtain Financial Advantage by Deception (four in number) were before Campbelltown Local Court in December 1994 when he was convicted and ordered to perform community service and compensation was ordered. In October 2002 he appeared before Campbelltown District Court and received a two year supervised bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act – a condition of which required him to comply with recommendations of his treating psychiatrist for gambling addiction.

33. In May 2003 he was sentenced to 6 months imprisonment at Cowra Local Court on seven charges of Obtain Money by Deception. His appeal to Orange District Court was rewarded by way of a six month suspended sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. He failed to appear at Cowra Local Court in December 2004 on charges of Obtain Money by Deception and a warrant was issued pursuant to s 25(2). He was arrested on that warrant and appeared before Wollongong Local Court on additional charges of Obtain Money by Deception from Broken Hill, six stemming from Lake Illawarra and two stemming from Springwood where he received 10 month suspended sentences pursuant to s 12, with drug and alcohol rehabilitation.

34. In May 2009 at Wollongong Local Court he was called up for breaching that suspended sentence and imprisoned with a non-parole period of 6 months. There was the predictable severity appeal to Wollongong District Court which resulted in a substitution of the non-parole period to 5 months.

35. In November 2010, the offender was back before Campbelltown Local Court on three charges of Dishonestly Obtain Financial Advantage by Deception from Young, one stemming from Orange, one stemming from Gooloogong, one stemming from West Wyalong, two stemming from Forbes and one stemming from Macquarie Fields. On those charges he was sentenced to 8 months imprisonment with a non-parole period of 2 months.

36. In April 2011, he failed to appear before Grenfell Local Court in respect of a charge of Dishonestly Obtain Financial Advantage by Deception and a warrant was issued pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act. He appeared before Wagga Local Court on 25 September 2013 to answer that charge plus two similar charges stemming from Blayney, four from Penrith, two from Tumut, one from Yass, one from Cootamundra, one from Leeton, one from Ryde and one from Temora. He was sentenced to imprisonment for varying terms, the largest of which was for 18 months with a non-parole period of 12 months to commence on 15 August 2013 and concluding on 14 August 2014. His appeal luck ran out when the Wagga Wagga District Court finally woke up to him and confirmed the convictions and sentences imposed by the Local Court.

37. The offender was charged with the 16 present matters by way of a Future Court Attendance Notice on 7 August 2014. He appeared before Young Local Court on 7 October 2014. He was legally represented. Pleas of guilty were entered to all charges on that day and they were adjourned, for sentence, to 18 November 2014. A Pre-sentence Report was ordered.

38. These antecedents show the offender to be an utter recidivist. If the past is any guide, and it is usually the best guide, the prospect of rehabilitation is not good. He has not made good use of the leniency shown him over the years. In short, he is a rapacious con man and I think it fair to comment that his conduct is so ingrained he is likely to re-offend as soon as an opportunity presents itself. It seems to me that over the years he has caused a lot of misery to a lot of people through his depredatory activities.

39. Given what I have just said in the preceding paragraph I stress that I have paid full regard to the principles in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 with respect to the proper use of a prior criminal record and, in particular, that prior offending is not an objective circumstance for the purpose of the application of the principles of proportionality, and nor is it open to a court to use prior convictions to determine the upper boundary of a proportionate sentence.

40. As Mason CJ, Brennan, Dawson and Toohey JJ said in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477:

“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience to the law, in the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

41. In Aslett v R [2006] NSWCCA 360 at [24], McClellan CJ at CL (with whom James and Hoeben JJ agreed) said that prior offending may diminish any leniency which might otherwise be showed to the offender.

Pre-sentence Report

42. The Court has the benefit of a Pre-sentence Report from Ms Lisa Luff of the Young Community Corrections Office. The report notes the offender is on parole for similar offences until February 2015. The offender’s parole supervision has been focused on addressing his gambling addiction and a referral to a mental health recovery support agency. He has signed a written parole direction not to enter licensed premises.

43. The offender has completed seven sessions of gambling counselling from 1 October 2014 to 11 October 2014 and his participation has been reported as excellent. He has also engaged with a mental health recovery support agency for support and goal development. His parole supervision to date is deemed satisfactory. He has had two previous long-term relationships. The most recent ended in 2008 after six years due to his gambling addiction and related offending. The first long term relationship lasted for eight years and there was a child from this union. His partner and child were tragically killed 14 years ago after they were hit by a stolen car.

44. The offender left school before completing Year 10 due to being expelled for truancy and fighting. His employment history consists of mostly short-term labouring positions with his longest period of continuous employment being with a waste collection business in Sydney. He has been in receipt of the Centrelink Disability Support Payment for the past 11 years due to a diagnosis of schizophrenia. He has made several self-harm attempts in the past and attempted to take his own life in 2008. He said that at the time of the subject offences he was not compliant with his medication and had commenced self-medication with illicit substances. He has resumed anti-psychotic medication and appears to be stable.

45. The offender has been recently hospitalised for a heart-related illness but the results of recent medical tests were not available at the time of writing the report to make an assessment as to suitability for community service work.

46. He has been assessed as a medium to low risk of re-offending. Given my observations at [38], my own prognosis is more guarded than that. I am sure that his gambling addiction and associated problems have been outlined in every Court he has ever appeared before over the years. His current progress, although commendable, and given his history over the years, has not been in place long enough to indicate he has undergone a Pauline or Damascene Conversion (a biblical reference to St Paul’s conversion to Christianity on the road to Damascus: Acts 9: 4 - 6).

47. Community Corrections consider the offender would benefit from a period of supervision with case management strategies to include monitoring gambling counselling and monitoring mental health recovery. He is assessed as unsuitable for community service due to unresolved health issues.

Defence Submissions

48. Mr Vo, solicitor for the offender, tendered a report from Anglicare relating the offender’s progress in their gambling addiction program. He reminded me of the offender’s history of schizophrenia and depression. Mr Vo directed me to the satisfactory aspects in the Pre-sentence Report. He submitted the offender had continuing and strong support from family and had received no grief counselling following the tragic loss of his first partner and child 14 years ago. Mr Vo submitted that I would regard the last sentence of imprisonment as being sufficient to satisfy the present charges and asked they be dealt with other than by full-time custody.

Matters of General Principle

Objective Seriousness – Factors of Universal Application to Fraud

49. The objective seriousness of a fraud offence is assessed by reference to the elements of the offence and the statutory maximum. The statutory maximum penalty acts as a “benchmark, or a reference point": R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [53]. Although sentencing for fraud should not be approached in a formulaic manner, the courts have recognised several factors that generally bear upon the objective seriousness of a given spectrum of like offences.

50. First is the amount of money involved: see R v Hawkins (1989) 45 A Crim R 430; R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376 at [40]. The amount of money actually obtained from the index offences was $15,550. The individual instances range from $200 through to $3,400. In my opinion the total obtained was not insubstantial.

51. Secondly, whether the loss is irretrievable: R v Todorovic [2008] NSWCCA 49 at [19]. In my opinion the loss is irretrievable given that it was said to have been dissipated by gambling or otherwise unaccounted for and the offender is in receipt of a disability pension. Nothing has been repaid and it is never likely to be.

52. Thirdly, the length of time over which the offences were committed: R v Pont [2000] NSWCCA 419; 121 A Crim R 302 at [74]; R v Mungomery (supra) at [40]. The chronology of index charges commences with the matter of 8 June 2011 with the second commencing in January 2013. The remaining charges run through to August 2013. It would seem at first glance that there is a gap between June 2011 and January 2013 which might be thought to indicate inactivity on behalf of the offender. However, that would be quite an incorrect view when one has recourse to the Bail Report read in conjunction with my remarks at [36]. It is clear that he has been dealt with for committing 13 fraud offences between 2011 and 2012, that is, between the first and second of the present charges. The authorities are clear that this is relevant to indicate the degree of planning and to show it was not an impulsive offence.

53. Fourthly, the motive for the crime: R v Mears (1991) 53 A Crim R 141 at 145; R v Hill [2004] NSWCCA 257 at [6]; R v Woodman [2001] NSWCCA 310 at [29]. It is submitted that the offender has a gambling addiction of long-standing and the index offences were committed to fund that addiction. The authorities make clear that a gambling addiction generally does not warrant the extension of leniency: see Latham J in Le v R [2006] NSWCCA 136 at [32]; approved in R v Huynh [2008] NSWCCA 16 at [11]. In the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [203] Spigelman CJ expressly rejected the proposition that an addiction to gambling is a matter in mitigation. This is so even when the addiction is pathological: see R v Molesworth [1999] NSWCCA 43, cited with approval in Assi v R [2006] NSWCCA 257 at [27].

54. Fifthly, the degree of planning and sophistication: R v Mille (Court of Criminal Appeal (NSW), 1 May 1998, unrep); R v Murtaza [2001] NSWCCA 336 at [15]. The list is not exhaustive and includes, for example, any accompanying breach of trust although this is not relevant for present purposes. Paragraphs [6] and [7] above set out the general modus operandi of the offender. The scheme was as simple as it was brazen but well thought-out and persistent nonetheless. It was also successful – perhaps more so than we will ever know – at [29] above. I note the use of pre-paid SIM cards registered in fictitious names, the use of different bank accounts in different names and the prompt withdrawal of monies after deposit using ATMs.

Pleas of Guilty

55. The offender pleaded guilty to all charges on the first available opportunity. He is thus entitled to a discount of 25% on what would be the normally applicable penalties to be imposed: R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 and s 22 of the Crimes (Sentencing Procedure) Act. The particular matters can properly be referred to as “white collar crime offences” and the decision of R v Falzon and Pullen (Court of Criminal Appeal (NSW), 20 January 1992, unrep) said that pleas in such matters attract a considerable measure of leniency.

56. However, I note that this decision was before the guideline judgment and the Crimes (Sentencing Procedure) Act, and I do not propose to add any additional discrete discount.

Totality

57. It has been correctly said that the majority of fraud cases involve multiple offences. The sentence is required to apply the totality principle. In the case of imprisonment this may involve fixing an appropriate sentence for each offence and to then consider matters of accumulation or concurrency as shown in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [47].

58. I am obliged to give proper regard to ss 3A and 5 of the Crimes (Sentencing Procedure) Act. I am of the opinion that no sentence other than custody is appropriate given the amount of money involved, the number of offences, the nature of offences, the course of conduct and the need for general and personal deterrence. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] (McHugh J). Given those circumstances it is not appropriate that any sentences imposed be suspended in accordance with the principles in R v Zamagias [2002] NSWCCA 17.

59. There will be some accumulation of the sentences: Nguyen v R [2007] NSWCCA 14. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of superior courts making it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v Mmk [2006] NSWCCA 272. The position was further explained in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41.

Sentences

60. There is no pre-sentence custody to be taken into account.

61. In respect of Sequences 1 to 5 inclusive, the offender is convicted and sentenced to fixed terms of imprisonment of 2 months to commence on 18 November 2014 and expire on 17 January 2015. The sentences are for fixed terms because they will be subsumed into other sentences to be imposed.

62. In respect of Sequences 6 to 10 inclusive, the offender is convicted and sentenced to fixed terms of imprisonment of 2 months to commence on 18 December 2014 and expire on 17 February 2015. The sentences are for fixed terms because they will be subsumed into other sentences to be imposed.

63. In respect of Sequences 11 to 16 inclusive, the offender is convicted and sentenced to an original term of sentence of 18 months to which is applied a discount of 25% resulting in an actual term of 13 months and 15 days. In conformity with the decision in Rios v R [2012] NSWCCA 8 at [43] (Adamson J, Bathurst CJ and Simpson J agreeing) I will pragmatically round down the sentence in favour of the offender to one of 13 months with a non-parole period of 3 months to commence on 18 February 2015 and expire on 17 May 2015 with a balance term of 10 months commencing on 18 May 2015 and expiring on 17 March 2016.

64. To avoid doubt, the offender is to serve a total non-parole period of 6 months to commence from 18 November 2014 with a parole period of 10 months.

65. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act I direct the release of the offender to parole at the end of the non-parole period provided he is otherwise eligible. Pursuant to s 51 I direct as a condition of parole that the offender be subject to supervision by the Probation & Parole Service for such period as that Service deems necessary and to undertake any program or treatment recommended by the Service. Any failure to comply with this direction may be regarded as a breach of parole.

66. I find circumstances to be sufficiently special for the statutory proportion to be reduced owing to the need for rehabilitation; the need for extended supervision upon release; there being an unresolved question of his health which may render imprisonment more burdensome upon the offender than for the average prisoner (R v Sellen (1991) 57 A Crim R 313); and the accumulation of the sentences.

P S Dare SC

Magistrate

The Cootamundra Circuit

Young Local Court

18 November 2014

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Decision last updated: 25 February 2015