Legal Research
Cases
R v Foster

R v Foster

Case [2022] NSWDC 467 6 May 2022

Criminal Liability

Mens Rea & Intention

Aggravated & Exemplary Damages

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Foster [2022] NSWDC 467
Hearing dates: 12 April 2022; 28 April 2022; 6 May 2022
Date of orders: 6 May 2022
Decision date: 06 May 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of three years, seven months, with a non-parole period of two years, two months: at [93].

Catchwords:
CRIME — Carriage/telecommunication service offences — fraud
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Aggravating factors — Financial gain — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters — Moral culpability — Objective seriousness — Offence forming part of a course of conduct and representative offences
SENTENCING — Subjective considerations on sentence — Drug addiction — Drug addiction — Mental illness — Protective custody

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Mental Health Act 2007

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Devaney v The Queen [2012] NSWCCA 226
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194
DPP v Hill & Kamay [2015] VSC 86
Dungay v The Queen [2020] NSWCCA 209
FL v The Queen [2020] NSWCCA 114
Imbornone v R [2017] NSWCCA 14
Khan v The Queen [2022] NSWCCA 47
Lloyd v The Queen [2022] NSWCCA 18
Mills v The Queen [2017] NSWCCA 87
Nabalarua v The Queen [2020] NSWCCA 68
Prince v The Queen [2020] NSWCCA 268
R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ)
R v Columbus [2007] QCA 396
R v Eliadis [2017] ACTSC 193
R v Han (unreported, 29 October 2010, NSWDC, Solomon DCJ)
R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ)
R v Qutami (2001) 127 A Crim R 369
R v Verdins (2007) 16 VR 269
Stevens v The Queen [2009] NSWCCA 26
Totaan v The Queen [2022] NSWCCA 75

Category: Sentence
Parties:
Regina (Commonwealth Office of the Director of Public Prosecutions)
Benjamin Foster (Offender)
Representation:
Ms S Goodwin (Crown Prosecutor)
Mr A McGrath (Counsel for the Offender)

File Number(s): 2020/347112

Judgment

Mr Benjamin Foster, born in 1984, has spent a significant period in custody between June 2009 and July 2014 having been convicted of fraud, child pornography and conspiracy charges. He then was in custody for some time between November 2016 and March 2017.
He was admitted as an involuntary patient on 20 March 2017 at the Cumberland Hospital having been transferred from the Metropolitan Remand & Reception Centre and having been referred pursuant to the Mental Health Act 2007. He was experiencing psychotic symptoms including paranoid and persecutory delusions involving a common-held conspiracy regarding “reptilians and grays”
He absconded from the Cumberland Hospital on 6 April 2017, a month after his admission. There does not appear to have been any attempt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Foster

Details

AGLC: R v Foster [2022] NSWDC 467
Case: [2022] NSWDC 467
Decision Date: 06 May 2022

CaseChat Overview and Summary

In the matter of R v Foster, the respondent was convicted on various counts of fraud and money laundering, following the use of telecommunication services to facilitate criminal activity. The case was heard in the higher courts, where the primary issues for determination centred on the appropriate sentencing considerations and penalties applicable to the respondent's crimes. The court had to weigh aggravating factors, such as the substantial financial gain achieved through the offences and the respondent's criminal history, against mitigating factors like the early guilty plea. Additionally, the court examined the respondent's personal circumstances, including drug addiction and mental illness, which could potentially influence the sentencing decision.

The court's reasoning focused on the objective seriousness of the crimes, their placement within a broader course of conduct, and the representative nature of the offences. The financial gain achieved by the respondent was deemed significant, and the court considered the need for general deterrence. The respondent's criminal record, which included previous convictions, was also highlighted as a factor that warranted a robust response from the justice system. In contrast, the early plea of guilty was acknowledged as a mitigating factor, potentially warranting a reduced sentence. The court also took into account the respondent's drug addiction and mental health issues, which could impact the manner in which any custodial sentence would be served.

After considering all relevant factors, the court imposed an aggregate term of imprisonment of three years and seven months, with a non-parole period of two years and two months. This decision reflects a balance between the need to impose a penalty commensurate with the gravity of the crimes and the personal circumstances of the respondent. The court's final orders mandated that the respondent serve the specified term of imprisonment, with the non-parole period representing the minimum time that must be served before eligibility for parole arises.

Orders

Orders of the court

An aggregate term of imprisonment of three years, seven months, with a non-parole period of two years, two months: at [93].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Foster [2022] NSWDC 467

Most Recent Citation

CDirector of Public Prosecutions v Low [2025] VCC 1172

Cases citing this decision · 1 of 1 shown

CDirector of Public Prosecutions v Low
[2025] VCC 1172

…ss 474.14(1), 480.4(1); Crimes Act 1914 (Cth) ss 16A(2), 16A(1), 16(2)(k), 16(2)(p), 17A, 20(1)(b). Cases Cited: Verdins (2007) 16 VR 269; R v Foster [2022] NSWDC 467. Sentence: Total effective sentence of 18 months. To be released forthwith upon giving a recognisance in the amount of $1000.00 and to be of good beh…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

Totaan v The the Queen
[2022] NSWCCA 75 Para 91

…ent with his children, and there is no evidence of hardship on family or dependants, bearing in mind as the court recently said in Totaan v The Queen [2022] NSWCCA 75 that one does not have to establish expectational hardship in any event.…
Khan v R
[2022] NSWCCA 47 Para 77

…sness, it is important to note that it is separate but related to assessment of moral culpability. As Beech-Jones J said recently in Khan v The Queen [2022] NSWCCA 47 at [9],…
Lloyd v R
[2022] NSWCCA 18 Para 13

…h cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 14. It must be remembered as McCallum JA said in Lloyd v The Queen [2022] NSWCCA 18, a case relied upon by the Crown today, that the general observation by Smart AJ in Qutami is not a principle; if it were, it would be a wrong princi…
Prince v R
[2020] NSWCCA 268 Para 88

…In Prince v The Queen [2020] NSWCCA 268 the court confirmed the principle that an offender's background of depravation may be relevant to a reduction in moral culpability and the weight to be given to general deterrence.…
Dungay v R
[2020] NSWCCA 209 Para 87

…h the principles in Bugmy v The Queen (2013) 249 CLR 571 , the court has said as much in many cases. As the court recently said in Dungay v The Queen [2020] NSWCCA 209, a causal link may not be needed in order to have regard to Bugmy factors. The relevance of a deprived background goes to both the head sentence and…
FL v R
[2020] NSWCCA 114 Para 79

…facts, matters and circumstances which bear on the assessment of the gravity of the crimes. It is not necessary, as the court said in FL v The Queen [2020] NSWCCA 114 (at [60]), to express the conclusion reached by reference to a position within a range or by resorting to mathematical terminology.…
Nabalarua v R
[2020] NSWCCA 68 Para 87

…have regard to Bugmy factors. The relevance of a deprived background goes to both the head sentence and the non-parole period: Nabalarua v The Queen [2020] NSWCCA 68.…
R v Eliadis
[2017] ACTSC 193 Para 61

…The Crown provided a bundle of cases including DPP v Hill & Kamay [2015] VSC 86, R v Eliadis [2017] ACTSC 193, R v Columbus [2007] QCA 396, R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ), R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) and R v Han (unreported, 2…
Mills v R
[2017] NSWCCA 87 Para 79

…ion of whether a court should indicate a range or position on a notional range, I bear in mind what was recently said by Hulme J in Mills v The Queen [2017] NSWCCA 87 in pointing out the problems with that type of approach, namely in understanding what a judge means by a description of where an offence falls within…
Mg v R
[2017] NSWCCA 14 Para 13

…subjective material should be treated with a degree of caution in accordance with cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 14. It must be remembered as McCallum JA said in Lloyd v The Queen [2022] NSWCCA 18, a case relied upon by the Crown today, that the general observation…
CDirector of Public Prosecutions v Hill and Kamay
[2015] VSC 86 Para 61

…The Crown provided a bundle of cases including DPP v Hill & Kamay [2015] VSC 86, R v Eliadis [2017] ACTSC 193, R v Columbus [2007] QCA 396, R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ), R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) and R v Han (unreported…
Bugmy v The Queen
[2013] HCA 37 Para 87

…hat a causal link be established between a deprived background and the commission of offences. In accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571 , the court has said as much in many cases. As the court recently said in Dungay v The Queen [2020] NSWCCA 209, a causal link may not be needed in or…
Gommesen v R
[2012] NSWCCA 226 Para 15

…In cases where a report is not challenged, the correct approach is as stated by Allsop P in Devaney v The Queen [2012] NSWCCA 226 at [88] (which has been cited with approval in a number of other cases),…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 80

…R v Verdins (2007) 16 VR 269 and its subsequent consideration by McClellan CJ in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194 on the principles to be taken into account when considering a mental illness. The Crown's position is that the report of Dr Martin suggests that ther…
Nguyen v The Queen
[2009] NSWCCA 26 Para 63

…entity fraud appellate courts have emphasised the importance of general and specific deterrence, as said by McClellan CJ at CL in Stevens v The Queen [2009] NSWCCA 26.…
R v. Columbus
[2007] QCA 396 Para 61

…The Crown provided a bundle of cases including DPP v Hill & Kamay [2015] VSC 86, R v Eliadis [2017] ACTSC 193, R v Columbus [2007] QCA 396, R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ), R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) and R v Han (unreported,…
R v Verdins
[2007] VSCA 102 Para 80

…The Crown cites R v Verdins (2007) 16 VR 269 and its subsequent consideration by McClellan CJ in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194 on the principles to be taken into account when considering a mental illness. The Crown's position is that the report of Dr Martin s…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
1 mention (from Para 62)

Medium Neutral Citation:	R v Foster [2022] NSWDC 467
Hearing dates:	12 April 2022; 28 April 2022; 6 May 2022
Date of orders:	6 May 2022
Decision date:	06 May 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of three years, seven months, with a non-parole period of two years, two months: at [93].
Catchwords:	CRIME — Carriage/telecommunication service offences — fraud CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Aggravating factors — Financial gain — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters — Moral culpability — Objective seriousness — Offence forming part of a course of conduct and representative offences SENTENCING — Subjective considerations on sentence — Drug addiction — Drug addiction — Mental illness — Protective custody
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth) Mental Health Act 2007
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Devaney v The Queen [2012] NSWCCA 226 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194 DPP v Hill & Kamay [2015] VSC 86 Dungay v The Queen [2020] NSWCCA 209 FL v The Queen [2020] NSWCCA 114 Imbornone v R [2017] NSWCCA 14 Khan v The Queen [2022] NSWCCA 47 Lloyd v The Queen [2022] NSWCCA 18 Mills v The Queen [2017] NSWCCA 87 Nabalarua v The Queen [2020] NSWCCA 68 Prince v The Queen [2020] NSWCCA 268 R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ) R v Columbus [2007] QCA 396 R v Eliadis [2017] ACTSC 193 R v Han (unreported, 29 October 2010, NSWDC, Solomon DCJ) R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) R v Qutami (2001) 127 A Crim R 369 R v Verdins (2007) 16 VR 269 Stevens v The Queen [2009] NSWCCA 26 Totaan v The Queen [2022] NSWCCA 75
Category:	Sentence
Parties:	Regina (Commonwealth Office of the Director of Public Prosecutions) Benjamin Foster (Offender)
Representation:	Ms S Goodwin (Crown Prosecutor) Mr A McGrath (Counsel for the Offender)
File Number(s):	2020/347112