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 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
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
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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.
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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”
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He absconded from the Cumberland Hospital on 6 April 2017, a month after his admission. There does not appear to have been any attempt…
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- AGLC
- R v Foster [2022] NSWDC 467
- Case
- [2022] NSWDC 467
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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