R v Dianne Elizabeth Niven

Case •

[2018] NSWDC 426

•

08 May 2018

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Dianne Elizabeth Niven [2018] NSWDC 426
Hearing dates: 04, 08 May 2018
Date of orders: 08 May 2018
Decision date: 08 May 2018
Jurisdiction:Criminal
Before: Neilson DCJ
Decision:

I set a non-parole period of 18 months, commencing 19-02-17 and expiring 18-08-18. I impose a further period of imprisonment of 1 year, to commence upon the expiration of the non-parole period, and expiring 18-08-19. The total sentence is therefore 2 years, 6 months comprising the non-parole period and the balance of the sentence.

 

I find special circumstances. The offender is eligible to be considered for release on parole at the expiration of the non-parole period

 

Matters taken into account on the Form 1

 I order the offender to pay compensation in the amount of $34,887.95
Catchwords: CRIME – SENTENCE – Range of fraud offences – Compensation order and period of imprisonment imposed
Legislation Cited: Crimes Act 1900
Category:Sentence
Parties: Regina (Crown)
Dianne Elizabeth Niven (Offender)
Representation:

Counsel:
Mr N Angelovski (Crown)
Mr M Campbell (Offender

  Solicitors:
ODPP (Crown)
Proctor & Associates (Offender)
File Number(s): 2016/261222; 2016/303629
Publication restriction: Nil

SENTENCE

  1. HIS HONOUR: Dianne Elizabeth Niven stands for sentence as a consequence to pleading guilty to 16 counts contained in an indictment presented on 4 May 2018. The offender also asks me to take into account in respect of count 4 in that indictment, three further offences and in respect of count 12 in that indictment, four further offences.

  2. The offences are all fraud related. The majority of the offences are offences pursuant to s 192E(1)(a) of the Crimes Act 1900 which carries a maximum penalty of ten years imprisonment. A number of charges are pursuant to s 192G(b) which carries a maximum penalty of five years imprisonment. Some of the offences on the Form 1 are pursuant to s 192E(1)(a) of the Crimes Act 1900 and one of the offences on the second Form 1 is pursuant to s 192K of the Crimes Act 1900 which carries a maximum penalty of seven years imprisonment and there is also one count in the second Form 1 of goods in custody, an offence contrary to s 527C(1)(a) of the Crimes Act 1900, which carries a maximum penalty of six months imprisonment.

  3. It is accepted by the Crown that the offender pleaded guilty to all of these charges at the earliest available opportunity. It was necessary to present an indictment at the sentencing hearing because of the process of charging the offender initially could be described in the vernacular as “messy”. That “messiness” continues in the form of the indictment and in the form with the agreed facts, which are not in any chronological order. For example, the earliest crime contained on indictment occurred on or about 9 April 2016 but that is count 13 in the indictment.

Facts   

  1. I turn then to the facts of the case. On 23 July 2016 at 4.50pm, the offender and her co-offender, Matthew Franklin, entered the Michael Hill Jewellers Shop at Marrickville Metro. They selected a gold men’s necklace valued at $3720.10 and chose for it a three year care plan worth $279.90 making a total proposed purchase of $4000. The offender and her partner paid a $400 deposit in cash and completed a finance contract for $3644 with a credit provider, Certegy. The finance contract was in the name of Matthew Franklin. He provided a New South Wales driver’s licence to identify himself. Franklin nominated the bank details of an account with the National Australia Bank that did not exist. Having signed the finance contract and provided the bogus bank details, Franklin and the offender left the jewellery shop which was captured on closed-circuit television. The taking of this gold men’s necklace and providing the bogus bank account number to Certegy is count 1 in the indictment. It is clear that the offender was involved in a joint criminal enterprise with Franklin.

  2. On 1 August the offender and Franklin changed the account details for the outstanding balance to be debited by way of Certegy’s easy pay app. The offender’s on this occasion provided the details of a bank account owned by Jetstar Airlines. Certegy attempted to debit funds from the Jetstar Airlines account but was unsuccessful in doing so as the account had been “flagged” as having been previously used by both the offender and Franklin for fraudulent transactions. That is the subject of count 2 in the indictment.

  3. On 4 August 2016 the offender and Franklin were contacted by email on an email address provided by Franklin. During that conversation the offender requested that full payment of the outstanding amount to Certegy be withdrawn from a bank account that was owned by WorkCover Queensland. That transaction was processed and the sum of $3665.45 was debited from the WorkCover Queensland bank account. When WorkCover Queensland noticed that the transaction had been processed it contacted Certegy and Certegy later reimbursed WorkCover Queensland for the sum of $3665.45. That is the subject of count 3 in the indictment. It should be clear that the net outcome was that Mr Franklin had received a gold men’s necklace worth $3720.10 and that Certegy had been left out of pocket $3665.45 which sum Certegy seeks by way of compensation from this offender.

  4. The next transactions relate to counts 4 and 5 in the indictment. At about 12.40pm on 23 July 2016 the offender entered the Medibank Retail Centre at Westfield, Bondi Junction. She opened a new private health cover in the name of Dianne Davis, the offender previously having been married to a Mr Shannon Davies. The offender selected a high insurance cover from Medibank and elected to pay the annual fee up front which was $8415.69. She provided as the account to be debited an account owned by Jetstar Australia. The funds were successfully withdrawn from Jetstar’s account and deposited with Medibank. That is the count 4 in the indictment. Approximately 24 hours later the offender contacted Medibank Private and changed the banking details from the Jetstar account to a different account. On 27 July the offender contacted Medibank again and reduced her cover. The reduced cover had a cost of $3500. She was due a refund of $4999 and that was deposited in a new bank account that she had provided. As a result of the offender’s having previously utilised this modus operandi, Medibank became aware through its private investigators who made enquiries to confirm that it was the account that the offender was attempting to gain money fraudulently from Medibank, was owned by Jetstar Australia. The refund which she sought was not deposited in the new bank details that she had provided. Accordingly this scam failed. That the attempt to obtain the refund is the subject of count 5 in the indictment.

  5. In connection with count 4 the offender asks me to take into account three offences on a Form 1. On 5 August the offender and Franklin attended Harvey Norman, Bondi Junction and purchased $1213 worth of goods by presenting a cheque drawn by Matthew Franklin for which both the offender and Franklin knew there was insufficient funds in the account to cover the amount drawn by Franklin. They both knew that the cheque would not be met on presentation. Later on the same day they again purchased goods worth $2377 at Harvey Norman at Bondi Junction by presenting another cheque drawn by Matthew Franklin which both the offender and Franklin knew would not be honoured on presentation. Two days later on 7 August 2016 the offender and Franklin again attended Harvey Norman at Bondi Junction and on this occasion purchased goods worth $2242 by presenting a cheque drawn by Matthew Franklin that both the offender and Franklin knew would not be met on presentation. As a result of those three offences on the first Form 1, Harvey Norman, Bondi Junction seeks $5832 in compensation.

  6. Count 6 in the indictment represents a fraud carried out on JB Hi-Fi and its financier at Westfield Bondi Junction. On 27 August 2016 the offender went to the JB Hi-Fi store at about 1.40pm. She selected a large number of items including a Samsung tablet, a Samsung mobile phone, an Apple iPhone, a large number of adjuncts to such technological apparatus, a Samsung tablet and other valuables which amounted in total to a value of $5352.87. To pay for those items the offender set up a finance contract with Flexirent Capital Pty Limited. That was for the purchase price plus interest to be paid over 36 months. The offender provided a New South Wales driver’s licence in the name of Joanne Mitrovich and signed the contract claiming to be Joanne Mitrovich of Kellyville. Having signed the contract the offender left the store with the goods. On 28 August 2016, Franklin attended a Darlinghurst money lender and pawned the Samsung Galaxy 7 mobile phone, being the same phone the offender had fraudulently obtained on the preceding day. Franklin obtained $600 in cash for pawning that apparatus. On 30 November 2016, police attended the Darlinghurst money lender and seized the Samsung Galaxy 7. A downloading of the contents of the telephone showed photographs of transactions that had been made by Franklin using the phone. The police have been unable to recover the balance of the goods and no payments were made to Flexirent Capital Pty Limited, which seeks $5,352.87 in compensation.

  7. Count 7 in the indictment refers to a transaction which was commenced on 10 August 2016. On that day the offender opened an AHM Health Insurance account. She listed herself as the policyholder, describing herself as Mrs Dianne Franklin of Redfern. Also listed on the policy was Matthew Franklin. When opening the account, the offender paid for membership contributions by providing the bank account details of WorkCover Queensland, claiming them to be the account details of M D Franklin. AHM Health Insurance direct-debited the account belonging to WorkCover Queensland for $5,803.60, believing it to belong to the offender.

  8. Count 8 is the follow-on from that transaction. On 15 August 2016 the offender contacted AHM and requested to cancel the cover and be reimbursed the premium to a bank account at the direction of Dianne Niven. The funds were withdrawn from the AHM Health Insurance account but were not deposited in the account nominated by Dianne Niven. The police are unaware as to where the funds actually ended up.

  9. The next set of transactions relate to counts 9, 10 and 11. Earlier on 6 June 2016 the offender opened an account with Australian Unity Health Insurance. The offender listed herself and Robert Niven on the policy. When opening the account, the offender paid for the membership contributions in full by providing the bank details of the Victorian WorkCover Authority, claiming that authority’s account to be her account. Australian Unity Health Insurance direct-debited the Victorian WorkCover account in $6,456.66, believing it to be the offender’s account. That is count 9 on the indictment.

  10. On 17 June 2016 the offender requested the funds to be reimbursed into another account, being an account belonging to Matthew Franklin. The funds of $6,456.66 were transferred from Australian Unity Health Insurance but they were not received into the account of Matthew Franklin. Where they were actually sent, the police have been unable to identify. That is count 10.

  11. On 26 July 2016 the offender again changed the bank account details for this policy and provided the bank details of the Jetstar Airways, claiming that the Jetstar Airways bank account belonged to her. On this occasion, Australian Unity Health Insurance direct-debited the Jetstar Airways account with $9,615.67, believing it to belong to the offender. That is count 11. The offender made multiple attempts to change again the bank details and have the money reimbursed to her. However, Australian Unity Health Insurance did not release any funds.

  12. Count 12 on the indictment is this. On 19 August 2016 the offender provided to Australian Unity Health Insurance details of a Mrs Juliette James in order to open another account. She provided details of a bank account that was in fact owned by WorkCover Queensland, claiming it to be that woman’s account. The offender requested that the membership contributions due under this new policy be debited from the WorkCover Queensland account. That transaction was successful. The amount transferred was $10,140.48. The police advised Australian Unity Health Insurance about this bogus transaction, and the health insurer reimbursed WorkCover Queensland. Despite the fraud, the offender obtained no direct benefit.

  13. The offender asks me to take into account in connection with that count on the indictment four further offences. The offender was arrested on 30 August 2016. At the time they searched her, they found her to be in possession of a New South Wales driver’s licence in the name of Jasmine Sue Robins. That was an offence contrary to s 192K of the Crimes Act 1900, possessing identity information with intent to commit an indictable offence, namely, fraud. That, as I have earlier mentioned, carries a maximum penalty of seven years imprisonment.

  14. The next matter the offender asks me to take into account on the Form 1 is that on 20 August 2016 she used the identity of Jasmine Sue Robins to open a further health insurance policy with Australian Unity Health Insurance for $5,815.56. She provided details of a bank account from which that premium was to be extracted, but the bank account details which she provided were not her own. The payment was rejected. That is, again, an offence of attempting to dishonestly cause a financial disadvantage.

  15. The next matter on the Form 1 is that on 28 June 2016 the offender opened an Australian Unity Health Insurance policy in the name of Abigail Mamaclay. She provided a bank account details from which payment for that policy was to be debited. That account was not her own and the insurer was unable to process the debit. That is another attempt to dishonestly obtain a financial advantage.

  16. The final matter on the second Form 1 is that when police searched the offender, they found her to be in custody of two blank Commonwealth Bank cheques in the name of SBROG Pty Limited as trustees for SBROG Unit Trust, and two blank cheques in the name of a restaurant, and two blank St George Bank cheques in the name of Penada Pty Limited, and a Bank of Melbourne visa card in the name of Dianne Davies. Those were goods in custody, an offence contrary to s 527C(1)(a) of the Crimes Act 1900.

  17. Count 13 is the earliest crime committed by the offender on this occasion. On 9 April 2016 the offender opened an AHM Health Insurance policy in the name of Mrs Charmaine Barnes. Also listed on the policy was a Mr Roger Barnes. The offender provided the details of a bank account which was owned by the All Occasions Group, claiming that bank account to be her own. The offender requested that AHM debit that account with $9,432.50 by way of premium. That transaction was successfully made by AHM on the All Occasions Group account.

  18. That leads to count 14. On 20 April 2016 the offender contacted AHM and requested that her membership be cancelled and that the premium be refunded to another bank account whose details she provided. AHM confirmed that the bank account was not in the name of Barnes and, therefore, provided no refund. At the time of her arrest the police located a note in the offender’s bag giving details of the accounts used in connection with counts 13 and 14 in the indictment.

  19. On 7 August 2016 Matthew Franklin, using the name of Matt Frank, opened an account with Australian Unity Health Insurance. The offender and Franklin provided banking details of an account which was in fact the account of WorkCover Queensland, claiming it to be their own. The offender requested the membership contributions of $4,948.78 be debited in full from that account. That transaction was successful.

  20. On 18 August 2016 the offender contacted Australian Unity Health Insurance and cancelled the policy and requested the funds be reimbursed into a different account, one belonging to Matthew Franklin. Funds of $4,520.32 were in fact transferred to Matthew Franklin’s account and those funds have never been recovered. The transaction on 18 August 2016 is count 16 in the indictment, the final offence.

On parole

  1. As what I will say later will show, these offences were all committed whilst the offender was on parole. That is a substantial aggravating factor, the commission of these offences whilst on conditional liberty. The offender was on conditional liberty as a result of a head sentence of two years imposed by Judge Syme with a non-parole period of eight months. That sentence was imposed for crimes using exactly the same modus operandi as was used for the crimes for which the offender now stands for sentence. In other words, these crimes were “more of the same” like crimes previously committed in New South Wales and, as I will show, probably the same as crimes previously committed in the State of Victoria.

Seriousness

  1. I need to consider the objective seriousness of the crimes. Important factors, in my view, in sentencing for crimes of this nature are, firstly, the amount, if any, recovered from the fraud. The second is the sophistication of the fraud. The more sophisticated the fraud, the more likely it is to be successful. The third matter to be considered is the identity of the victim. Minds may differ on this issue, however, it is common for judges to point out that the penalty for breaking, entering and stealing from a supermarket might be very different to the crime of breaking and entering and stealing from a dwelling house, where one is taking the goods or assets of an ordinary Australian family, rather than the occupier and retailer of a large supermarket. The identity of the victim, in my view, touches the seriousness of the crime. It is one thing to defraud Jetstar Australia, WorkCover Queensland and WorkCover Victoria, and another thing to defraud a pensioner of his or her life savings which may be only a few thousand dollars. Unfortunately, such crimes are often carried out on unsuspecting and vulnerable people. Here, the crimes committed by the offender were not against natural persons but against large financial institutions.

  2. A large number of the attempted frauds were unsuccessful. The largest amount lost by a victim was $10,140.48, a sum lost by WorkCover Queensland. The rest of the losses were all below $10,000. Frauds amounting to the theft of millions of dollars can be committed. None of these frauds was in any way sophisticated. Good financial management by the appropriate institutions would have prevented the frauds being carried out.

  3. When one considers both the amount recovered, the sophistication of the frauds and the victims of the frauds, it can be seen that all these crimes are at the bottom of the range of objective seriousness for these types of offences. However, the number of them and the fact they were all committed whilst the offender was at conditional liberty must be borne in mind, as must the fact that the offender has previously committed crimes of this nature, such that leniency ought not be extended to her.

Personal circumstances

  1. On the other hand, when I consider the subjective circumstances of the offender, things point in the opposite direction, in my view. The offender was born in Melbourne in May 1985. She is currently thirty-two years old and will soon turn thirty-three. Her life has not been a happy one. She is the only child of the union of her parents. She has a half-brother, the son of her father, but he is much older than her, some twenty years older. She has had very limited contact with her half-brother.

  2. Her father was twenty-five years older than her mother. In other words, her father was old enough to have been her grandfather. The offender’s mother had an affair or affairs out of wedlock, that is, affairs with men other than her husband. That, in essence, led to the offender’s father being her primary carer by the time she became a teenager. The offender’s mother was only “intermittently involved” in her life. The offender’s parents’ marriage was an unhappy one. The offender’s father was often violent towards her mother. Nothing justifies violence. The offender left home at the age of thirteen. That was in either 1998 or 1999.

  1. She was seen by a psychologist, Dr Paul Pusey, who interviewed her on 26 April 2018. The offender told Dr Pusey that she was “kicked out” of home by her father. The offender thought she was “unstable” at that time and believed that her father did not know how to deal with a teenage daughter who was much younger than he was. The offender went to live with friends. She left school in year 9; whether that was halfway through the year or at the end of the year, the evidence is unclear. She would have been fourteen or fifteen years old at the time. She was fortunate enough to obtain an apprenticeship as a hairdresser and she completed that apprenticeship.

  2. At the age of fifteen, which means either in the year 2000 or 2001, she met a young man Robert Reiffel, whom she described as her “teenage boyfriend”. They commenced living together when the offender was sixteen years old, that is, in either 2001 or 2002. Their relationship lasted seven years. The result of their relationship was the offender’s first child, a daughter born in 2007. Tragically, the child’s father died twenty days after the child’s birth. The offender told Dr Pusey that he died of an undiagnosed brain tumour, but a sudden death at such an early age without symptoms points, in my experience, to the rupture of an intracranial aneurysm.

  3. However, prior to the birth of her first daughter, the offender started committing crimes. On 14 October 2002 she was dealt with by the Ringwood Children’s Court for theft. For that, she was given a good behaviour bond, which she observed. On 17 September 2004 the offender appeared before the Ringwood Magistrates Court for fraud offences. She was sentenced to 18 months imprisonment with 12 months non-parole. She appealed to the County Court sitting in Melbourne and in lieu of imprisonment the County Court sentenced her to 18 months in a youth training centre. The County Court also ordered her to pay compensation of $2,450, which may represent the extent of the frauds committed in 2004. On 12 May 2005 the offender again appeared at the Ringwood Magistrates Court on a charge of obtaining property by deception. She was merely ordered to pay compensation of $1,200.

  4. The Victorian criminal record indicates the offender was dealt with by the Melbourne Magistrates Court on consecutive days, 30 October 2006 and 31 October 2006, but, doing the best I can, it appears to be in respect of the same offending behaviour. The offending behaviour fell into two categories. There are a number of offences of obtaining property by deception, obtaining financial advantage by deception and attempting to commit those crimes. For the property offences, the offender was placed on a community based order for a period of 12 months. That required her to do 50 hours community service, to be subject to supervision of Community Corrections and to participate in alcohol and other drug programs. It would appear to be somewhat similar to intensive corrections order. However, the offender was also dealt with at this time for trafficking in methylamphetamine. For the drug offences, she was sentenced to two months imprisonment, but that sentence was suspended.

  5. It ought be clear that by 2006 the offender had developed a drug habit, which led to her engaging in trafficking in methylamphetamine. However, between the birth of her first daughter in 2007 and 2014, the offender did not commit any crimes as far as I can ascertain.

  6. As a result of the death of her partner, shortly after the birth of her first child, the offender’s life changed. In his history, Dr Pusey says this at [22], that the offender told him that when her partner died,

“it changed me as a person. It changed my behaviour and it’s when my drug use became more problematic. I feel like I had a clearer sense of myself and my identity before then and I could use this to more easily make appropriate choices about my behaviour and more easily resist the influence of others. When this process broke down, it broke down gradually.”

  1. At [16] of his report, Dr Pusey pointed to a history that up until 2007 the offender had a fairly good work history but she had only been able to work intermittently since that time, work as either a hairdresser or as a receptionist or as a waitress. The birth of her child followed so swiftly by the death of her partner, destabilised the offender. At the time of the birth of her child she was only 21 or 22.

  2. The period from 2010 to 2014 was a good one. At [23] of his report, Dr Pusey said this:

“She disclosed that her longest continuous period of abstinence from substance use was between 2010 and 2014. When queried as to what she believes supported her abstinence during this period, she attributed this to ‘the stability in my life which supported this. I was in a good job, a stable home and a good relationship. Even when dad died, as traumatic as that was, I was let move through it without needing drugs or having my life get derailed’.”

In 2010 the offender married Mr Shannon Davies but that relationship only lasted nine months. In 2012 she married Mr Robert Niven and she is still married to Mr Niven. The offender’s father died in 2012. According to Dr Pusey’s report, her father died from numerous problems, including leukaemia, diabetes, testicular cancer and bowel cancer and, no doubt, that was a very upsetting thing for this offender because of her father’s providing to her most of her parental care at a very formative time in her life, her early teenage years.

  1. However, in 2014 the offender’s life turned again. It would appear that in 2014 she met Brody Jarvis. She met him through a drug dealer in Victoria. Jarvis introduced her to heroin and was the first person to put a needle into the offender’s arm. She moved to Tasmania to live with Jarvis for 10 months, so he could be nearer to a son he had from another relationship. However, the offender and Jarvis left Tasmania for Sydney in order to avoid Jarvis’ going into gaol in Tasmania.

  2. The offender is wanted in Tasmania on an outstanding warrant. According to the evidence before me, the warrant for her arrest relates to one count of stealing, one count of stealing a motor vehicle and one count of failing to appear, presumably before the Tasmanian Magistrates Court. It may be that before going to Tasmania the offender committed some crimes in Victoria. I do know that on 31 March 2015 Moorabbin Magistrates Court issued a warrant for the offender’s arrest and that warrant remains “outstanding” as at 28 March 2018.

  3. When the offender came to New South Wales she had a Tasmanian driver’s licence. Between March and July 2015 the offender committed 16 offences according to a New South Wales police facts sheet, prepared for her first prosecution in this State. The offender was arrested for those offences on 8 July 2015. There were a large number of offences pursuant to s 192E(1)(a) of the Crimes Act 1900 and offences against s 193C(1) of the same Act. I have read those facts. Essentially, she is using the same modus operandi that she used in the offences for which she now stands for sentence.

  4. At the time the offender was arrested on 18 July 2015 she was in the early stages of pregnancy. She had fallen pregnant to Jarvis. On 9 November 2015 the Waverley Local Court sentenced the offender to imprisonment for 18 months and fixed a non-parole period of 12 months. The Local Court ordered the offender to pay compensation in the amount of $81,932.45. That represents a substantial amount more that she caused to be lost in those fraud offences than she caused to be lost in these fraud offences.

  5. The offender appealed against severity of her sentence and that appeal came on for hearing before Syme DCJ on 7 January 2016. By that time the offender was at least seven months pregnant. Her Honour reduced the non-parole period to eight months, concluding on 8 March 2017. However, her Honour increased the head sentence to two years from the original 18 months. A new head sentence was to expire on 8 July 2017. It is understandable what her Honour did. To compensate for reducing the non-parole period, she extended the period on parole, no doubt in the expectation that the offender would benefit from a lengthy period on parole, when she might be given assistance by Community Corrections. Her Honour reduced the non-parole period to eight months in the expectation, probably, that the offender would be released on parole prior to her giving birth to her second child. Unfortunately, any such expectation was thwarted.

  6. Dr Pusey’s report contains this matter:

“17. Ms Niven disclosed that she resided in the community between March 2016 and August 2016 and that during this period she resided in Sydney and struggled with finding stable accommodation. She reported that ‘I gave birth to my youngest daughter on 3 March 2016 and was released from custody on 8 March 2016. I was released into the community straight from hospital after having my baby.’ Ms Niven reported that as part of her parole conditions she was not allowed to have contact with her baby’s father and that she believed that she may have been suffering with post-natal depression, stating ‘my small baby was a methadone baby and spent time in the neo-natal intensive care unit after she was born. I struggled to attach and bond with her’.

18. Ms Niven described herself following the birth of her child as being ‘really unstable and hormonal’. She acknowledged that ‘I struggled to re-integrate into society and breached my parole through my use of drugs, not living at the address I was supposed to be at and having contact with my baby’s father. At the time I was waiting on an interstate parole transfer to Victoria which didn’t come through’.

19. Ms Niven indicated that her daughter now resides with her paternal grandmother in Tasmania. She disclosed that this child is the product of an extra-marital affair, however she stated that ‘despite the cheating on my husband with my baby’s father and getting pregnant, my husband is supporting me and wants to remain in our marriage’. She acknowledged that she had not had any contact with her youngest daughter during her incarceration stating, ‘I’ve been in custody nearly all her life. I haven’t had contact with her since she was ten days old. There is a FaCS NSW order in place that she’s to have no contact with me when I am in custody.’”

One can see that the offender was poorly supported when she was released from custody on 8 March 2016.

  1. A month later, on 9 April 2016, she started committing these offences, the first offence being count 16, which is alleged to have occurred on 9 April 2016. On 1 July 2016, a breach of parole report was made by Bankstown Community Corrections. That records a number of matters.

On 3 March 2016, the offender was issued with a signed written direction not to associate with Brody Jarvis except at the direction of or in the presence of legal, medical or community services professionals as required by them; on 6 April 2016, the offender returned a positive drug result for methylamphetamine. In March 2016, the offender had made an application for her parole supervision to be transferred to her home State of Victoria but that State declined that application. On 26 March, two things happened. The offender was spoken to by police at Riverwood Railway Station when she was detected smoking on the platform. The police records indicate that at the time she was in company with Brody Jarvis contrary to the written direction earlier given. Later that day, she was found unconscious by police in Darlinghurst with an apparent heroin overdose which required ambulance officers to administer to her Narcan. On 1 July, Community Corrections made this recommendation:

“Ms Niven has failed to report to Community Corrections on three occasions, is not residing at the approved address and her current whereabouts are unknown. The parolee has been detected in violation of a written non-association direction and treated for an apparent drug overdose. Given Ms Niven’s blatant disregard for the parole conditions imposed it is respectively recommended that parole be revoked.”

The State Parole Authority revoked the offender’s parole on 15 July 2016, however she remained at liberty until she was arrested for these offences on 30 August 2016.

  1. According to the agreed facts, police arrested both this offender and Franklin at Spring Street, Bondi Junction at 12.15pm on 30 August 2016. Checks confirm that a warrant had been issued for her arrest by the State Parole Authority as a result of her breaching her parole conditions. She was conveyed to the Waverley Police Station where she agreed to take part in an electronically recorded interview but then refused to answer any questions. The offender was then charged with a number of matters that are currently before me.

  2. A large number of things have gone wrong for Dianne Niven over her short life. Her early years and her interaction with her parents can hardly be seen as ideal. Her leaving school early can also be seen as hardly ideal. The death of her “teenage boyfriend” 20 days after the birth of their child was tragic both for the offender and for their child. Clearly, the offender’s life was destabilised. She had been introduced to drugs prior to the birth of the child in her late teenage years. Such is not, unfortunately, uncommon. When destabilised by the death of her childhood sweetheart, the father of her first child, she sought to compensate herself. Later, things got better for her, in particular it appears that her relationship with Mr Niven was positive. However, her association with Brody Jarvis destabilised her and led her into greater drug dependency and the need to commit property crime or crimes of dishonesty and fraud in order to support her drug habit. Unfortunately, the offender could not benefit from her first period of incarceration in this State because of the circumstances in which she was released to parole.

Prospects   

  1. One question for me is, what does the future hold for this lady, will she reoffend or will she be rehabilitated? Dr Pusey’s report contains this. In citing this I will correct some egregious grammatical spelling errors contained in Dr Pusey’s report:

“5. Ms Niven has pleaded guilty to the charges as outlined in a statement of agreed facts. When taken to the police facts provided as background information for the purposes of this report, Ms Niven did not deny the facts as presented to her reflecting the events for which she has been charged and displayed overt agitation when reviewing the Statement of Agreed Facts.

6. Ms Niven reported that ‘my behaviour was fuelled by addiction. I was using ice and heroin at the time’. Ms Niven acknowledged that the experience of depressive symptoms additionally influenced her engagement in her offending behaviour stating ‘I was very depressed at the time. I have breached my parole, I was continuing to use and I was on the run. I committed my crimes to get money to pay for my addiction because I didn’t know how to get help with it. I believe that I wanted to get help but my addiction confused my thinking and made me believe that the only way to get help was to hit rock bottom, return to gaol and start again from there’.

7. Ms Niven disclosed that when she was initially incarcerated that ‘I couldn’t accept responsibility for what I had done, now after nearly two years in gaol, I can accept and understand what I’ve done and I’m ready to make amends’.

8. Ms Niven acknowledged experience of feeling of remorse for her offending behaviour. She stated ‘I feel remorseful. I feel terrible for what I’ve done. I showed blatant disregard for the law and the opportunity I was given with my parole. I’ve let down no one more than myself with my choices, but in doing so I’ve let down my husband, my children and my family. I feel terrible for doing that. I’m ashamed for my behaviour and it is very embarrassing to think about what I’ve done’.”

Firstly, that shows contrition and remorse. Secondly, it shows insight. Thirdly, it shows a determination by this lady to turn her life around no longer to let down her husband and her children and her mother who is still living and with whom her elder daughter resides.

  1. As I said earlier the offender is now 32, shortly to turn 33. She has experienced much in her short life but her experiences since 2014, the chaos and the crime and the addiction, appear now to have led her to understand what she must do to live in our society. Whilst one can never be certain of these things it appears to me that the prospects of rehabilitation are good and therefore the chances of the offender not reoffending are also good.

  2. Under the heading of “Risk of reoffending and treatment”, Dr Pusey tells me this:

“64. As previously reported, the referral information provided indicates that Ms Niven has a significant history of involvement in the forensic system. At her assessment, Ms Niven demonstrated a high degree of insight into the contributing factors related to her offending behaviour. Specific contributing factors, which she cited to have contributed to the behaviour observed in the matters for which she is before the Court include her untreated substance abuse and mental health pathology particularly her grief and trauma pathology that so significantly contributed to the onset of her problematic substance abuse. Additional factors cited by Ms Niven include her engagement in problematic behaviours driven by ongoing active mood pathology undertaken to support her substance abuse disorder.

65. It is my opinion that the appropriate treatment pathway for Ms Niven would aim to address the following areas...”.

Dr Pusey then sets out five areas which needed to be addressed. He also pointed out three areas which needed to be addressed if the offender was given a “community-based sentence”.

  1. After speaking of the need for such treatment, Dr Pusey went on to say this:

“68. It is my view that her assessment, Ms Niven exhibited genuine remorse for the offending behaviour for which she is before the court, and perhaps more importantly a genuine degree of insight into the factors which have led to this. It is my opinion that were she to engage in the treatment plan based upon paragraphs 65-67, that this would significantly reduce her risk of recidivism.

69. It is unlikely that Ms Niven will be able [to] access this type of treatment if she is to incur a custodial sentence, given the lack of consistent access she will have to appropriate treatment providers. This opinion is supported by her reports regarding the lack of opportunities for engagement with psychological service providers she has been provided with during her period of incarceration. In addition, extending her period of incarceration will likely to serve to further disconnect her from her community supports, increasing the difficulty associated with her eventual community re-integration. She cites this difficulty as previously being linked to a recurrence of problematic substance use and a breach of her parole shortly after her release in 2016.

70. Further incarceration will likely also result in the exacerbation of her current mood and anxiety pathology, complicating the attempt to address the underlying basis for her substance use pathology and more broadly in the attempt to support the development of coping strategies less based upon the use of avoidant behaviours. If she is to incur a custodial sentence, I would recommend that she be assessed for suitability to undergo specialist dual diagnosis treatment, accessed through the Special Programs Unit of CNSW.”

That recommendation indicates that the offender should be released from custody shortly, if that be possible. Clearly, the prospects of rehabilitation/ /not re-offending are good if the offender undergoes the treatment proposed by Dr Pusey.

Consideration   

  1. An immediate release from custody would, in my view, be contraindicated. It would be contraindicated because the offender was discharged from custody with a five day old child in 2016 but was unable to cope. She will not have that on this occasion but she will need support in re-entering the community and she will need support from Community Corrections to undergo the treatment which Dr Pusey has recommended she has in the community. The best hope for this lady is to have a lengthy period of parole, being actively supported by Community Corrections and, on this occasion, the offender must realise that she has to co-operate with Community Corrections to get the best possible outcome, which would allow her to recommence cohabitation with her husband and to obtain the residence of her two daughters with her and her husband.

  1. However, it has to be borne in mind that I am not a social worker, I am a judge and I am here to pass sentence, bearing in mind the various purposes of sentencing. They include rehabilitation, but they also include denunciation of inappropriate conduct in the community and trying to deter this offender and others from committing the same sorts of crime.

  2. I have come to the view that this is an appropriate case in which to pass an aggregate sentence. To do so I need to consider the sentence that would be passed in respect of each count in the indictment. I turn to that exercise.

  3. For none of the offences for which the offender stands for sentence is there any standard non-parole period. I sought, at the commencement of these reasons, to outline the appropriate maximum sentence and I have also made a finding as to the objective seriousness of the offences.

  4. In respect of count 1, where the effect of the fraud was that Matthew Franklin obtained a gold mens’ necklace valued at $3,720.10 and that Certegy Ezi-Pay Pty Limited was out of pocket $3,665.45, it appears to me that the appropriate sentence is six months imprisonment. The offender pleaded guilty at the earliest available opportunity, so that reduces the head sentence by 25 per cent, to four and a half months.

  5. Counts 2 and 3 are again referrable to the same conduct. In respect of each of those, the same sentence ought be passed, four and a half months imprisonment. Those sentences themselves would, in the normal course, be wholly concurrent.

  6. In respect of count 4 in the indictment, where the fraud involved $8,415.69, I would start with a head sentence of one year. I reduce that to nine months because of the early plea of guilty and in considering that sentence I have taken account of the matters on the Form 1, which amounted to a loss of $5,832.

  7. In respect of count 5, the appropriate head sentence should be six months, discounted to four and a half months. Sentences in respect of counts 4 and 5 ought be wholly concurrent.

  8. In respect of count 6 in the indictment, where there was an effective loss of $5,352.87, I start with a head sentence of eight months imprisonment. I reduce that to six months imprisonment because of the offender’s early plea of guilty.

  9. In respect of count 7 in the indictment, I again would impose a sentence of eight months, reduced to six because of the early plea of guilty.

  10. The sentence in respect of count 8 in the indictment ought be the same and those two sentences ought be wholly concurrent.

  11. In respect of count 9 in the indictment, where the sum involved was $6,456.66, the theoretical head sentence is one year which I reduce to nine months because of the early plea of guilty.

  12. I would impose the same sentence in respect of count 10 and count 11, so effectively nine months in respect of each of those ought be, in the normal course, be wholly concurrent because, essentially, it is the one crime.

  13. In respect of count 12 in the indictment, and taking into account the matters on the second Form 1, I would impose a sentence of imprisonment of one year which I discount to nine months because of the offender’s plea of guilty at the earliest available opportunity.

  14. Count 13 involved an attempted fraud of $9,432.50. Nothing was lost. The head sentence, after the discount for the early plea of guilty, ought be nine months. The sentence for count 14 ought be the same and ought be wholly concurrent in the normal course.

  15. In respect of count 15, the head sentence, after discount for the early plea of guilty, ought be four and a half months. The sum involved was $4,948.78. The sentence for count 16 ought be the same and ought be wholly concurrent.

  16. I provide this summary of the indicative sentences: TABLE

COUNTS

TERM

1, 2, 3

4.5 months

4,5

9 months

6

6 months

7, 8

6 months

9, 10, 11

9 months

12

9 months

13, 14

9 months

15, 16

4.5 months

Total

57 months

  1. I have formed the view that the appropriate aggregate sentence should be imprisonment for two years and six months, that is 30 months.

  2. The next question is when should that sentence commence? The Crown sentence summary prepared for 4 May 2018 tells me that in total the offender had been in custody for one year, eight months and five days at that time, from 30 August 2016 to 4 May 2018. Of course, today it would be one year, eight months and nine days. The Crown case summary indicates that taken from that ought be 11 months and 24 days because that was the serving of the balance of her parole from 30 August 2016 to 22 August 2017, making the time spent in custody referrable to the current offences eight months and 12 days. However, I have a discretion.

  3. As I pointed out earlier, the offender was initially sentenced by the Local Court for her first set of offences in this State to a head sentence of 18 months imprisonment. However, on appeal, her Honour Judge Syme increased that to 24 months, or two years, no doubt to counteract the reduction of the non-parole period in the circumstances I have already indicated. However, that has worked to the offender’s disadvantage. I have formed the view that theoretically the current sentences should commence at the expiry of the original 18 month sentence on 8 January 2017. However, to that ought be added the period of six weeks, the time between the revocation of the offender’s parole by the Parole Board on 15 July 2016 and her arrest on 30 August 2016. That is a period of some six weeks. If I add six weeks to 8 January 2017, I come to 19 February 2017 and I intend to commence the current sentence at that time.

  4. A sentence of two years and six months imprisonment, commencing on 19 February 2017, expires on 18 August 2019.

  5. The remaining question ought be the length of the non-parole period. Here there are clearly special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non-parole period. The statutory nexus would require me to make the non-parole period three-quarters of the head sentence. I have formed the view that the appropriate non-parole period, in the circumstances of this offender’s case, is 60 per cent of the head sentence, or 18 months imprisonment. Eighteen months imprisonment means the offender should be released to parole on 18 August 2018, which is in roughly three months’ time.

  6. Pragmatically, that will allow Corrective Services to make arrangements to ease the offender into the community and to make suitable arrangements for her to be on parole. It will also enable my remarks on sentence to be transcribed and forwarded to Corrective Services, together with a copy of Dr Pusey’s report, so that Community Corrections, that is those who will look after the offender after her release to parole, can arrange for the necessary treatment in so far as they are able to do so. That, in my view, ought maximise the positive outcome from this lady’s release to parole.

  7. The reasons for breaking the statutory nexus between the head sentence and the non-parole period are the need to shorten the custodial sentence, bearing in mind the opinion of Dr Pusey that further incarceration will not help her and to maximise the period when she might be assisted on parole by Community Corrections, which, I trust, will be a more positive outcome on this occasion because of the insight that the offender now has and the fact that she will have been abstinent from illicit drugs for the best part of 2 years when released to parole.

  8. On each of the 16 counts contained in the indictment presented on 4 May 2018, you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and six months, commencing on 19 February 2017 and expiring on 18 August 2018. I impose a further period of imprisonment of one year, to commence upon the expiration of the non-parole period and expiring on 18 August 2019. The total sentence is, therefore, two years and six months, comprising of a non-parole period and the balance of sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence, I have taken into account all the matters on the two Forms 1.

  9. By consent, I order that you pay compensation in the sum of $34,887.95, in accordance with MFI 4.

  10. Any other orders sought?

ANGELOWSKI: No, your Honour.

HIS HONOUR: Are those orders adequate from your point of view, Mr Campbell?

CAMPBELL: Yes, that’s correct, your Honour.

HIS HONOUR: Good luck, Ms Niven.

OFFENDER: Thank you, your Honour.

HIS HONOUR: I hope you reunite with your daughters.

OFFENDER: Thank you.

HIS HONOUR: They need you just as much as you need them.

**********

Decision last updated: 15 January 2019

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

1