R v Hatton

[2022] NSWDC 688

District Court

New South Wales

Medium Neutral Citation:

R v Hatton [2022] NSWDC 688

Hearing dates:

21 July 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 5 years 6 months with a non-parole period of 3 years. See [122]-[123]

Compensation orders pursuant to the Victims Rights and Support Act 2013. See [124]-[125]

Catchwords:

CRIME – Dishonestly obtain financial advantage etc by deception

SENTENCING - Relevant factors on sentence – fraud by family bookkeeper - multiple frauds – multiple victims- rolled up offences – Form 1- payment received without the knowledge or authority - early plea some recompense- victim impact- remorse - assistance to facilitate police investigation – disclosure of unknown guilt- percentage reduction of sentence- prior good character – COVID restrictions in gaol - special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

District Court Act 1973

Victims Right and Support Act 2013

Cases Cited:

Assi v R [2006] NSWCCA 257

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

C’th v Beattie [2017] NSWCCA 301

DBW v R [2007] NSWCCA 236

DPP Cth v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Fagan v Crime Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49

Johnston v R [2017] NSWCCA 53

Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Le v R [2006] NSWCCA 136

Le v R 2019] NSWCCA 181

Lewinsv R [2007] NSWCCA 189

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McLaren v R [2021] NSWCCA 204

Panetta v R [2016] NSWCCA 85

Pantano v R (1990) 49 A Crim R 328

PerrinvR [2021] NSWDC 408

R v David Michael Wills [2013] NSWDC 3

R v Duncan [2019] NSWDC 852

R v Ellis (1986) 6 NSWLR 603

R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99.

R v Hasan [2005] NSWCCA 21

R v Henry (1999) 46 NSWLR 346

R v MAK [2006] NSWCCA 381

R v MJR (2002) 54 NSWLR 368; (2002) 130 A Crim R 481

R v Molesworth [1999] NSWCCA 43

R v Scott Miles [2017] NSWDC 411

R v Stanbouli [2003] NSWCCA 355

Siwek v R [2017] NSWCCA 178

Zhang v R [2011] NSWCCA 233

Category:

Sentence

Parties:

Shane Maree Hatton (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms G Lewer (for the offender)

Solicitors:
Morrisons Law (for the offender)
Mr J Loosley (for Director of Public Prosecutions)

File Number(s):

2021/00091298

SENTENCE – EX TEMPORE REVISED

1. Shane Maree Hatton is for sentence today in relation to three serious offences, charged pursuant to s 192E(1)(b) of the Crimes Act 1900. Today she adhered to the guilty pleas entered in the Local Court. In relation to each of those matters she is convicted. When I sentence her for sequence 751, she asks I take into account another matter on a Form 1.

2. The convictions enliven an application before the Court pursuant to the Victims Right and Support Act 2013. In the ordinary course I would give judgment on sentence then a judgment for the compensation application but today I will give my compensation judgment first. It is my experience that after sentences are announced, offenders, who must process that outcome and its consequences, are often unable to focus on subsequent related proceedings.

Compensation - Victims Right and Support Act 2013

3. The application is for compensation in the sum of $750,000. The application is based on the material put before me in the sentencing proceedings. Ms Hatton opposes the application. She does not say that order should not be made but rather, through her counsel, Ms Lewer, says that the sum cannot be quantified as there is a possibility of each of the victims in this matter obtaining some other compensation for their loss; perhaps insurance, perhaps as a tax write off. Alternatively, they may by some other unidentified matters minimise their loss. She also notes that repayments have been made to two of the victims and they should be taken into account.

4. I have considered an application to adjourn the matter so that the prosecution can provide further information. Mr Loosley, Solicitor, who appears for the Director of Public Prosecutions, submits that the loss is clearly quantified in the material before the Court. It is based upon material provided by the complainant, who was at all relevant times the bookkeeper for each of the victims in this matter.

5. As the loss can be quantified an order can be made today. These orders can be enforced as civil judgments. The procedure set out in the Victims Rights and Support Act 2013, the Act, are meant to ensure that such orders are expedited and run in conjunction with sentencing proceedings, so as not to burden the civil jurisdiction of the Court.

6. I have previously discussed the relevant principles that apply where an application involves a large sum of money and involving multiple counts in R v David Michael Wills [2013] NSWDC 3. As far as I am aware no court has said I was wrong, and my judgment has been followed in other cases.

7. An aggrieved person has a right to seek compensation. The present application is made pursuant to the Victims Right and Support Act, part 6 division 3. If a person is convicted by a court of an offence the Court may on the conviction, there having been notice, direct the specified sum be paid out of the property of the offender to any aggrieved person by way of compensation for any loss sustained through or by reason of the offence. The Act speaks of an offence, s 97(1), and compensation for any loss through, or by reason of the offence.

8. Here, there are four relevant offences, as the Form 1 matter is included. There are five aggrieved persons; Owen Wright (sequence 751), Tyler Wright (sequence 753), Michael Wright (sequence 754) and Robert and Fiona Wright (sequence 750) who are the joint victims of one offence (sequence 750), the matter on the Form 1.

9. The Act provides the Court may not give a direction for compensation for an amount in excess of the maximum that in its civil jurisdiction the Court is empowered to aware for recovery of a debt, s 98. Here that sum is $750,000, s 4(1) District Court Act 1973.

10. In R v Wills I held that:

“While the words of the section, if strictly applied, would mean that the jurisdictional maximum was available for each offence it would seem both fair and just that that maximum apply to the total compensation awarded for all offences that are part of a general course of conduct”

11. In that case of course there was only one victim, here there were four offences and five victims. But there is only one compensation proceedings and there is only one sentence proceedings. Mr Loosley, on behalf of the Director, confines his claim in relation to these proceedings to the jurisdictional maximum of the Court.

12. “Loss” is not defined in The Act. Given the distinction between injury and loss, it must include economic loss and a causal connection between the loss and the crime must be established: Fagan v Crime Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49 at 673. An order is akin to civil compensation and the appropriate civil standard of proof should apply.

13. In determining whether or not to give a direction for compensation I take into account the matters set out in The Act. There is no suggestion of any behaviour or attitude or disposition of an aggrieved person that directly or indirectly contributed to the loss. I have to take into account any amount that has been paid to the aggrieved person in respect of the substantially the same facts.

14. In this case there is evidence before the Court in an affidavit from the husband of the offender that Owen Wright has been paid or proceedings are in train to pay him $56,000 and for Michael to be paid $47,000. Those amounts should and will be considered.

15. It is apparent on the material before me that the offender has no assets other than perhaps a share in a family home. She is impecunious. When she is released from custody she will be in dire financial need. The fact of her offences has meant that her capacity to work, particularly in her long-term profession as a bookkeeper will be significantly impacted. But they are not matters the Court can take into account in reduction of compensation; although they do apply when I come to sentence.

16. Any sum that the Court directs should be paid to the aggrieved person within 28 days, if it is not paid the Registrar of the Court must on the application of the aggrieved person issue the aggrieved person a certificate which has the same effect as the entry of a civil judgment.

17. This order does not preclude a further civil action but it must be taken into account: s 102. The purpose of the statutory scheme is to compensate victims, so far as economic loss is concerned it proves an alternative to costly civil action. There are four aggrieved persons, as I have said.

18. I have apportioned the matters as 51% to Owen Wright, 35% to Michael Wright, 9% to Tyler Wright and 2½% to Robert and 2½% to Fiona, which is in approximate proportion to the total loss suffered by them and the amounts set out in the agreed facts. I take into account so far as Owen and Michael Wright the amounts already paid or in train to be paid.

19. Pursuant to the Victims Rights and Support Act part 6 division 1, I direct that the following amounts be paid to the Registrar of the District Court Wollongong for payment to Owen Wright, Tyler Wright, Michael Wright and Robert and Fiona Wright and that the property of Shane Maree Hatton by way of compensation for loss sustained by reason of the offence particularised in the matters now before me.

20. The amount of compensation to be paid is $647,000. Compensation to be paid in the amount of:

• $326,500 to Owen Wright.

• $262,500 to Tyler Wright.

• $20,500 to Michael Wright.

• $18,750 to Robert Wright and

• $18,750 to Fiona Wright.

21. I now return to the sentencing proceedings. 

Sentencing proceedings - Introduction

22. When she was in the Local Court, Ms Hatton pleaded guilty to three offences pursuant to s 192E(1)(b) Crimes Act:

1. Sequence 751 relates to Owen Wright, and an amount of approximately $815,000.

• Sequence 753 relates to Tyler Wright, and an amount of $562,000. 

• Sequence 754 relates to Michael Wright, and an amount of approximately $140,000. 

• The Form 1 (sequence 750) relates to jointly Robert and Fiona Wright, and an amount of $77,000. 

23. Each of the offences for sentence carries a maximum penalty of ten years imprisonment. Those maximum penalties are important guides to the exercise of my sentencing discretion. 

Agreed Facts

24. There are agreed facts before the Court.  What follows is a summary.

25. The victims in this matter are Robert and Fiona Wright, and three of their five children, Owen, Tyler and Michael wright.  Robert and Fiona Wright previously owned a plumbing business in the Nowra region.  Owen, Tyler and Michael Wright are professional surfers.  The offender was a long‑term employee of the Wright family. She was initially employed by their plumbing business in 2007 to perform secretarial duties.  Her responsibilities included payment of invoices, bills and wages.  At a later stage, in 2009, she had access to the business’ bank accounts with the National Australia Bank (NAB).

26. The Wright family re-located to northern New South Wales.  Thereafter the family business was managed remotely by Robert and Fiona Wright. The offender remained employed by them but stayed at Nowra. 

27. Around 2009/2010 the offender was separately engaged as a bookkeeper to help with the general finances of Owen Wright.  In 2010/2011 the offender began assisting Tyler Wright, and then, in 2014, Michael Wright.  The financial interests of Owen, Tyler and Michael Wright were based on their careers as professional surfers and were managed under independent corporate entities. 

28. The offender was employed to perform bookkeeping and administrative duties; this included helping with the general finances of the three children, Owen, Tyler and Michael Wright.  She was responsible for paying various expenses of each sibling.  As a result of her employment the offender, at different times, had access to personal and business bank accounts held by Owen, Tyler and Michael Wright.  As bookkeeper she was involved in the management and transfer of funds within the NAB accounts held by Owen, Tyler and Michael Wright.  For that reason, she was granted authority to conduct financial transactions from their bank accounts in order to manage their expenses.

29. Owen, Tyler and Michael Wright relied on the offender and other professional advisors to manage their expenses; they did not regularly access or view their bank accounts. 

30. In May of 2020, Owen Wright, had a conversation with the offender about what he saw as discrepancies in his financial records in relation to some building work.  He drew to the offender's attention those potential discrepancies. 

31. In evidence today, consistent with the agreed facts, the offender told me that she realised that while some of the discrepancies related to possible overcharging, unconnected to her, Owen Wright had identified some matters where she had been defrauding him. 

32. About a week later, on 28 May 2020, the offender and Owen Wright had another telephone conversation.  The offender said to Owen Wright, "I'm sorry, I've been gambling, I fucked up, and it got out of control.  Please don't tell anyone, because I haven't told Craig, I haven't told the kids".  Owen Wright asked the offender "Is it just me." The offender replied, "It's just you; please don't tell anyone".

33. The offender told me that by that comment she was saying "Don't' disclose" until she had told her husband.  I am prepared to accept that evidence as it would have been obvious from what she had told Owen Wright that he would have, and was expected by her to tell his siblings. 

34. Owen Wright observed the offender to be upset and crying, and apologetic. She told him she wanted “to make it right,” and she offered to work for free.  She was distraught. She said she had been hating herself and could not live with herself. She referred to sitting in the car with the gas on. 

35. After the conversation, Owen Wright took immediately notified his other siblings and advisors about the admissions; following which the offender’s access to the bank accounts of the three siblings was restricted. 

36. The matters before the Court involve numerous individual frauds which were rolled up into four separate offences.  The individual matters were set out in schedules attached to the agreed facts.  Three rolled up matters are for sentence today, and the fourth will be taken into account when I sentence for sequence 751.

37. The matter on the Form 1, sequence 750, obtain financial advantage by deception, $77,475.54 relates to NAB accounts held by Robert and Fiona Wright.  Between 8 August 2011 and 17 September 2013, the offender accessed NAB accounts held by Robert and Fiona Wright, and companies owned by them. She conducted 56 electronic transfers in amounts totalling $77,475.54.  Each payment was received without the knowledge or authority of Robert and Fiona Wright.  All amounts were deposited into two separate IMB bank accounts in the name of the offender and held under her sole authority and control. 

38. Sequence 751, obtain financial advantage by deception of $815,123.77 from NAB relates to accounts held by Owen Wright.  Between 11 February 2012 and 5 May 2020, the offender accessed NAB bank accounts held by Owen Wright and conducted 317 electronic transfers in amounts totalling $815,123.77.  Each transfer was conducted without the knowledge or authority of Owen Wright; all amounts were transferred into two separate IMB accounts in the name of the offender, and held under her sole authority and control.

39. Sequence 753 relates to the offender obtaining financial advantage by deception $562,139.64 from NAB accounts held by Tyler Wright.  Between 23 April 2014 and 4 May 2020, the offender accessed NAB bank accounts held by Tyler Wright. She conducted 247 electronic transfers in amounts totalling $562,139.64. 

40. Each transfer was conducted without the knowledge or authority of Tyler Wright. All the amounts were transferred into two separate IMB accounts in the name of the offender; held under her sole authority and control. 

41. Sequence 754 relates to the offender obtaining financial advantage by deception of $140,962.05 from NAB accounts held by Michael Wright.  Between 1 April 2014 and 9 May 2016, the offender accessed NAB bank accounts held by Michael Wright and conducted 80 electronic transfers in amounts totalling $140,962.05.  Each transfer was conducted without the knowledge or authority of Michael Wright.  All amounts were transferred into two separate IMB bank accounts in the name of the offender and held under her sole authority and control. 

42. The total financial advantage obtained by the offender during the period is $1,595,701.00.

43. The offender disguised the nature of the transactions directed to her IMB accounts form the various NAB bank accounts held by the victims.  Transactions were commonly described as "personal business-related expenditures" by the relevant account holder. 

44. The victims had professional advisors, such as accountants and financial planners; the transactions by the offender affected the data relied upon by these advisors to prepare financial statements such as business activity statements (BAS), balance sheets and annual tax returns. 

45. The amounts misappropriated by the offender from the victims were used to fund her gambling problem.  Police obtained records from the TAB and NEDS showing a significant number of transactions by the offender involving, in total, large amounts.

Disclosure

46. After the admissions by the offender, she obtained copies of her bank statements for the relevant period.  The offender highlighted each fraudulent transactions in her bank statements.

47. Subsequently there was correspondence with the victims, the offender and her husband.  This also involved discussions about the records and the amounts taken by the offender.  The offender and her husband handed over a large number of documents; approximately 15 boxes of material.  This included the highlighted bank statements of the offender, as well as invoices, insurances, registration papers and other paperwork relating to the entities.  They showed the unlawful transactions. They were used by the Wright family accountants to create a summary of misappropriated funds.  That information was also provided to investigating police.

48. On 31 March police executed a search warrant on the offender’s premises. She was cautioned. She agreed participated in a police interview, and made admissions.  She was crying during that interview. She told police she had taken money from the accounts of the victims and used it to fund her online gambling addiction, primarily on horse racing.  She told police that on each occasion she took the money she felt sick, but she was unable to stop herself due to her problems with gambling.  She said she was gambling online with TAB and NEDS apps. She deleted those gaming apps in June 2020, and the thought of gambling now makes her feel sick.  She said she intended to repay the victims by mortgaging her family home. She said she knew what she did was wrong, and that she was not proud of it.  She said there was a sense of relief when she admitted to Owen Wright what she had done. She said she was sorry.

Objective seriousness

49. When the matter was in the Local Court it was agreed that the various frauds and transactions should be rolled up into four separate charges, three of which are for sentence. This was an entirely appropriate procedure accepted by both defence and prosecution. It is axiomatic that rolled up amounts involve a series of criminal acts, so care needs to be taken in all such cases not to double count what would otherwise be regarded as a s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 factor. But the number of occasions remains a relevant consideration on sentence, as does the period of which the transactions occurred. 

49. There were several utilitarian benefits to the prosecution in the approach taken. There were also advantages to the offender.  Rolled up charges restrict the maximum available sentence to that prescribed by the legislation for a single offence, rather than the total theoretically available.  The whole of the conduct of the offender, including all her conduct is relevant when it comes to assessment of her total criminality, and the application of sentencing principles: R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99.

50. It is clear from the brief recitation of the facts that this offender, over many years, abused a position of trust shown in her by each victim: Pantano v R (1990) 49 A Crim R 328.

51. Each offence individually and collectively; involved a gross breach of trust, and was in direct contravention of her terms of employment: R v Stanbouli [2003] NSWCCA 355. Each involved a considerable number of transactions. The economic loss was considerable. The offending took place over a lengthy period.

52. While each offence must considered individually, I also take into account that they were committed against multiple victims, all members of the one family. 

53. While not motivated by greed in the sense that Hatton was acquisitive and wanted possessions, and a lifestyle she could not afford, the offence was motivated by her selfish desire to feed her gambling addiction; and she did so knowing full well what she was doing was wrong.  Despite that knowledge she did nothing for ten years to stop or reveal or activity.  To the contrary, she took active steps to hide what she was doing. 

54. The fact that offences are committed to feed a gambling addiction is not a mitigating factor on sentence: Johnston v R [2017] NSWCCA 53; Le v R [2006] NSWCCA 136; Assi v R [2006] NSWCCA 257 at [27]; Siwek v R [2017] NSWCCA 178. At best a gambling addiction may explain why an offender committed the offences and did so for so long. In many respects a gambling addiction is treated in the same way as a drug addiction: R v Henry (1999) 46 NSWLR 346; R v Molesworth [1999] NSWCCA 43.

55. While initially opportunistic the offences evolved, and over time. They involved planning, subterfuge and significant efforts to avoid detection.  Whatever her motivation for her initial crimes they were continued against other victims who had been introduced by family members. They breached the trust that was ostensibly shown in her by her initial employers, the children's parents. 

56. Each offence obviously had a considerable financial impact on each victim, and other matters to which I will soon refer.  It is accepted that in all the circumstances of this case, notwithstanding the powerful subjective case to which I will soon refer, that so serious was each offence for sentence that only imprisonment could meet the purposes of sentencing. The offender acknowledged as much when she gave evidence.  Gaol is required because this offending involved; deliberate calculated systematic and repeated crimes by respected employee in breach of trust that resulted in large losses to each victim over a long period.

Form 1

58. The matter on the Form 1 will be taken into account when I determine the appropriate penalty for sequence 751 offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146. I do not in any sense impose a sentence for that offence, but it does operate to increase the sentence that would otherwise be appropriate for sequence 751. I do so as part of an in‑synthesis approach to sentencing as explained by Justice McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]-[54]. The increase recognises the need for personal deterrence and retribution for the crime that is for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. 

Maximum penalty

59. I have already referred to the maximum penalty of ten years; that maximum is a very important guide to the exercise in my sentencing discretion.

Guilty plea and cooperation

60. The guilty pleas had significant utilitarian value justifying the full 25% reduction allowed by s 25D Crimes (Sentencing Procedure) Act. 

61. I cannot, and do not, ignore the comprehensive admissions and complete cooperation with authorities once the initial query was raised by Mr Owen Wright. That cooperation, and the disclosures made, has an impact in several areas when I come to synthesise an appropriate sentence. 

62. Ms Hatton's admissions were made before discovery by each victim, but in the process of the queries being raised by Owen Wright.  Owen Wright was not then aware of the extent of her offending.  While Ms Hatton's crimes may have been discovered at some stage, her revelations following the initial query involved disclosure of then unknown guilt.  Accordingly, a further and specified reduction must be made to the otherwise appropriate sentence.  Ms Lewer suggested a further 15%. 

63. It has long been accepted that where an offender voluntarily discloses guilt for unknown offences their sentence can be reduced: R v Ellis (1986) 6 NSWLR 603 at 604. In many such cases an offender is entitled to a significant added element of leniency. Section 23(4) Crimes (Sentencing Procedure) Act applies to such disclosures: Panetta v R [2016] NSWCCA 85. Section 23 requires a court which imposes a lesser penalty, because the offender has assisted, to indicate that lesser penalty, and to state the nature and extent of any reduction often done by way of percentage.

64. Not all information provided to police or victims falls within the parameters identified in R v Ellis. For example, admissions by an offender concerning the period of time she was involved in a particular offending (Le v R 2019] NSWCCA 181), or disclosure of information that would otherwise have been detected, or admitted as guilt. 

65. In some cases, leniency is extended by the amelioration of sentence, as I said, can be significant: Panetta; DBW v R [2007] NSWCCA 236. On the other hand, if there is a real likelihood that police would have discovered the crime without the disclosure being made, or where investigations are close to identifying an offender then a voluntary confession may not entitle someone to significant leniency: Zhang v R [2011] NSWCCA 233: R v Hasan [2005] NSWCCA 21. “It is a matter of degree;” Lewinsv R [2007] NSWCCA 189 at [18].

66. Once the discrepancy was discovered by Owen Wright it seems likely that the offender's guilt in relation to offending against him, and the others, would have been discovered.  But Hatton's disclosure to Owen Wright was immediate, and thereafter was complete and detailed; enabling the extent of her offending against all the victims to be discovered.  Those disclosures of as yet unknown guilt, so far as the other victims is concerned, justifies some reduction in the sentence for past assistance.

67. The reduction cannot be unreasonably disproportionate to the nature and circumstances of the offending: s23 (3) Crimes (Sentencing Procedure) Act. And, I must take care not to double count matters in mitigation, as the disclosures are relevant generally to my assessment of an appropriate sentence. 

68. Sentencing is not meant to be or involve a mathematical or arithmetical exercise but for these matters specifically it is appropriate that, so far as sequence 751 is concerned, an additional reduction of 5% be made, and for sequences 753 and 754 an additional reduction for past assistance of 10% be made.

Criminal record

69. Prior to the discovery of this matter Ms Hatton was regarded as a person of good character.  Until she started offending against the victims, she had no prior involvement in crime. And, there is nothing to indicate, other than her commission of these crimes, that she is anything other than an upstanding citizen.  Her prior good character is relevant in mitigation, but it has to be tempered because it was the offender's apparent good character that enabled her to gain and keep the victim's trust; trust that she was not deserving of.

Victim impact

70. I have received Victim Impact statements from Owen and Fiona Wright. The absence of Victim Impact Statements from other victims does not mitigate sentence: s30 Crimes (Sentencing Procedure) Act. 

71. Owen Wright told me that the offences affected him greatly, not just economically but emotionally.  Initially he blamed family members for money he believed was missing. False accusations were made about the family members damaging his relationship with them.  He told me he felt emotionally worn down from the experience, guessing and blaming others around him. He said he suffered anxiety and anger issues.  He also told me of his professional history and the impact of the offending on him, particularly in 2015 when after an injury he was considering retiring from the sport of surfing.  He said he went back to surfing as a sport because he had not yet set up a retirement plan and did not believe partly, I am sure, because of the actions of the offender in taking money from him, that he had enough money to do what he wanted to do in the future.  The extra stresses upon him have been exhausting and he still struggles to shake that exhaustion.  He concludes "I find it hard to trust my own decisions, and people in my life".

72. His mother, Fiona Wright, told me of the impact of the breach of trust by a person who she had trusted to assist her children.  She spoke of the impact on her of their losing the money involved. She says she feels angry that money was taken, particularly when her children were at times incapacitated.  She describes what occurred as a “heartbreaking and despicable act.” 

73. Although the Victim Impact Statements do not conform to the Regulations technically, no objection was made by Ms Hatton to me reading and receiving them.  The Victim Impact Statements attest to the person harm suffered by each victim, while they refer to their economic loss, there were also other harms. I have no difficulty accepting what is set out in them; they serve the very practical purpose of drawing to the offenders, the courts and the community's attention the personal and economic damage and harm caused by these crimes. 

Offender’s subjective case

74. A considerable amount of evidence, including evidence from the offender was put before me this morning.  Throughout her life; as an adult, and a child, she has been surrounded by strong and supportive people. Her father died reasonably recently, and his death had a significant impact on her. 

75. She been married since 1995. Her husband and children and other family, stand by her. 

76. She has no underlying mental health issues, but now has some post‑traumatic stress disorder symptoms. She is depressed because of her circumstances.  Her gambling addiction is now in remission.  She presents, had it not been for her offending, as a respectable hardworking wife and mother, “sincere” and “warm-hearted” were terms used in the material put before me. 

77. Hatton told her Mission Australia advisors that she is a person who values respect and integrity, but her actions showed she did not apply these standards to herself. 

78. In speaking with officers from the Community Corrections, who prepared the Sentence Assessment Report, she said that she was aware things would end badly, but she did not detour from her course, until the matter was raised by Owen Wright two years ago.

79. She had now engaged with counselling. Mission Australia's efforts with her over the past two years, and the other proactive matters that she had taken, caused Community Corrections to assess her at low risk of re‑offending. 

80. Hatton gave evidence before me today. She told me of some aspects of trauma in her life and reiterated that she has, that she was truthful with those who prepared reports for me. 

81. I accept what she said was sincere and genuine; not just because of what she said, but because was she said has been supported by the practical actions she took since this matter first came to light. 

82. This is a sad and tragic case, not just because of the commission of serious offences but because she did not at any stage over the period of offending, apply the standards that she would have applied to herself. Had she applied those standards she would have disclosed the offending much sooner. 

83. She has now accepted responsibility and accepted she must serve a custodial sentence.  She made appropriate recognition of the impact of her offending on each of her victims, both economic and emotional, and she is also, understandably, regretful for the impact of her offending on her own family.

84. She says, and I accept, she is sickened by what she has done. It is clear from all the material before me that she is depressed about her circumstances.  Who would not be depressed at; the consequence of what they have done, the impact of their offending, and of course, the consequences to themselves. 

85. Her husband told me he was “blown away” by the revelations.  He was not required for cross‑examination.  He notes repayments to Owen Wright of $56,000, Michael Wright of $47,000. Although they have not been confirmed, I am prepared to accept that evidence.  He, his sister and friends in their references to me speak of a well-liked and loved person. 

86. Her friends note her community activities. Everyone sees her as loyal, loving, open and caring.  Mission Australia tell me how she has engaged in counselling since October 2021, and make a strong statement about her underlying good character.

87. Her treating psychologist noted at a number of sessions she has seen and noted her remorse and regret at chasing debts by more and more gambling.  Reference is made to the incident spoken of by Owen about potential suicide attempt at the time of disclosure. 

88. A respected forensic psychologist, Ms Duffy, reveals two traumatic incidents, her father's death after the offending started, and being a robbery victim in 1990.  Hatton’s response was denial and escapism, she was bored, and gambling gave her an outlet.  That gambling grew in frequency and diversity, including phone betting.  While she initially spoke of borrowing to pay debts that may have been an initial intention, but as she conceded frankly in evidence after the initial borrowings there was a calculated and continued effort to feed her gambling addiction by taking from her employers.  Even when she won on gambling, she did not repay any debt; she gambled her winnings away. 

89. She told Ms Duffy and me, and others, that she was shocked when she found out the total amount that had been taken and lost by her victims.

90. Ms Duffy details how with the assistance of her treating psychologist Hatton was able to stop gambling. The report notes the trauma she now suffers because of the consequences of what she has done.  It is clear from all the material before me that what she had done since she has disclosed, and been arrested, will deter her from future offending.  Ms Duffy notes some residual post‑traumatic stress disorder symptoms, but her clinical diagnosis relates to her a gambling condition: gambling - severe persistent in sustained remission

91. Ms Duffy also notes symptoms of depression which may relate to her current circumstances. I accept that any person, any rational person, would fear going to gaol and separation from their family and that would depress them.  In gaol, she will be exposed to violent and anti‑social people. 

92. Ms Duffy, at [44], discusses some possible motivations for the offending - alleviation of boredom, seeking stimulation and escape from negative emotions.  She said treating a gambling disorder of such significance requires measures be taken to develop and maintain insight.  To date Hatton has engaged in such measures over the past two years.  If she continues with that insight, with assistance, there is hope for a meaningful future life.  She has strategies to help her engage in matters that would assist her, other than resort to gambling. 

93. Mr Duffy notes strong protective factors, including; proof of positive progress, family support, her demonstrated capacity to cease gambling, the absence of any personality disorders or mental illness, and of importance, her lasting shame and awareness of the consequence of her actions.

94. There is always a risk, when someone is put into custody, that they give up hope and stop taking proactive measures to prevent re-offending. There is always a risk that associations made in gaol with antisocial people, can set back progress toward rehabilitation.  Ms Duffy suggests that Hatton engage, so far as practicable, in EQUIPS addictions program. 

95. There is evidence of remorse; she told me she is sickened by what she did, and the damage caused.  She said she was sorry. I accept what she says. The steps she has taken demonstrate a commitment to rehabilitation; her revelations, co-operation, guilty pleas and some restitution. They are practical demonstrations of remorse. 

96. The puzzle here is that all her current feelings, and the unanimous statements of those who have provided and continue by their presence in court to support her did not operate at any stage over nearly a decade to make her stop.  It was not until Owen Wright spoke to her about the suspicious transactions in May that the revelations occurred.

COVID and Custody

97. I do not underestimate the impact of COVID on prisoners.  The pandemic is far from over.  I have heard evidence about those impacts in many, many matters this year. I have access to the Community Corrections, Corrective Services website.  I am aware of current impacts, lockdowns, and the potential for more restrictions in the future.  I have to deal with people who have caught COVID in custody.  I do not believe additional evidence is necessary; courts are aware of the potential for these COVID measure and impact to continue and for further restrictions to continue into the future: Toller v R [2021] NSWCCA 204 at [25].

98. Ms Hatton fears gaol; so she should.  Gaols are unpleasant, nasty, violent places.  She fears separation from her family, and she will be separated from them. She may have some possibility of face‑to‑face visits, but they will be limited and disrupted by pandemic mitigation measures.  A video link is no substitute for a family visit.  Gaols are regularly locked down, gaols are regularly placed in quarantine; prisoners in lockdown are kept in their cells for considerable periods during the day, and are not given access to programs, education, or exercise or work that would otherwise be available to them.  All matters I take into account.

Submissions

99. I am assisted by the careful written submissions of Mr Loosley for the Director, and Ms Lewer, for the offender.  Both counsel spoke to those submissions.  There is no dispute about matters of principle.

100. Mr Loosley submits that I would find it an aggravating circumstance that there was substantial harm by the combination to each victim both economic and personal.  While I can take into account; personal and economic harm, tragically where such frauds are committed against individuals, as opposed to corporations, the harm as detailed in the victim impact statement are all too common. The amount of economic loss is a matter that is a relevant factor on sentence because it is one important measure of the harm served, but I cannot accept the submissions that the aggravating circumstance of substantial harm is engaged.  I do however take into account the extent of the harm both a personal and economic; as I must. 

101. Ms Lewer drew my attention to the two year delay. During that period Ms Hatton has been kept in suspense about her fate.  I do not underestimate the anxiety she would have suffered, as I am quite sure that she would have been advised a custodial sentence would be imposed upon her and the fear of gaol is a powerful factor when it comes to anxiety.

99. I accept that there have been some self‑harm incidents, showing her shame and disgust at what she did.  But the delay also meant that the charges could be rolled up with an advantage to her. And the delay has also meant that she has been able to demonstrate progress to rehabilitation, which I will take into account, particularly in a finding of special circumstances. 

100. Ms Lewer submitted there is extra curial punishment; in the publicity and a real prospect that she would not in the future be able to engage in her occupation as a bookkeeper.  But those consequences are what should have been expected from the commission of these offences.  Without publicity the general deterrence principles could not operate.

101. It is also sad but true that almost every ex‑prisoner find getting work hard.  And, obviously here, it would be a brave and benevolent employer who would ever trust Ms Hatton, a person with a gambling disorder, and a history of fraud, in any financial role.  She will have to retrain, but she is young enough and she has sufficient support to be able to do so.

102. Reference was made to a decision of mine, in Perrin v R [2021] NSWDC 408 about guilty pleas during the pandemic. There I said that a plea of guilty entered during the currency of the pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects, citing Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175. In discussion I indicated that I had had cause to reflect in that decision and given the statutory scheme in New South Wales restricts the discount that can be given for guilty pleas the Victorian authorities did not apply. 

103. That does not mean that the aspects of the guilty plea, beyond the utilitarian value should not been taken into account in the offender’s favour. I will do so. 

Other Cases - pattern of sentencing

107. Judges should strive for consistency in sentences, but consistency relates primarily to matters of principle.  Ms Lewer took me to two decisions of mine: R v Duncan [2019] NSWDC 852 and R v Scott Miles [2017] NSWDC 411. There is utility in looking in looking to other sentences if they are imposed for offences of a similar nature and maximum penalty: R v MJR (2002) 54 NSWLR 368; (2002) 130 A Crim R 481. But great care needs to be taken.

108. The significance of sentencing patterns “result from the application of the accumulated experience and wisdom of first instance judges and of appellant courts” but they are “no more than historical statements of what has happened in the past”: DPP Cth v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303] and [304], per Simpson J.

109. I have regard not just to what was done in other cases, but more particularly why it was done: Hili v The Queen, Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520. Every offence, and each offender there are different, and while consistency of principle and recognition of past sentencing patterns, or past sentencing decisions by me do assist, I must focus on an individual sentence and these individual offences.

110. I have regard to the cases put before me.  I have had regard to a helpful monograph from the judicial commission on Sentencing in Fraud Cases 2012.  There is also recently a helpful summary, by Justice Hamill in McLaren v R [2021] NSWCCA 204. And there is a table prepared by the Public Defenders which sets out in brief form appellate sentencing decisions in Fraud matters: As I said, they are all useful but as I have said, a judge has to make an individual decision based upon an individual offender, and the circumstances of each offence.

Structure of the sentence

111. I must sentence for three offences pursuant to the same section of the Crimes Act.  Each involved financial harm to different victims.  Each had other impacts on their victims, I am sure; as is revealed in the victim impact statements from two victims. 

112. There will be an aggregate sentence here. I will indicate an appropriate sentence for each offence.  I then have to structure the aggregate such that the overall sentence is just and appropriate to the totality of Ms Hatton's crimes.  There must be accumulation of penalty to respect the fact there were separate offences and the consequences caused each victim.  Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending.

113. The totality principle applies here, however. It recognises that sometimes appropriate punishment for each offence can result in an overall sentence that is disproportionate.  The severity of an overall sentence is not simply linear; the severity of a sentence increases at a greater rate than the increase in the length of the sentence, for example, a sentence of two years would have a greater impact than one year, so far as it is punitive affects are concerned; R v MAK [2006] NSWCCA 381 at [18].

114. What is a proportionate sentence, however, often depends on the perspective of the observer; whether they are the victim, the community, the appeal court, or an offender: C’th v Beattie [2017] NSWCCA 301, Basten JA at [26]-[45].

115. The evidence relating to the offender's continuing need for; psychological treatment, assistance for dealing with her gambling addiction while in the community, help adjusting to normal community life, and her demonstrated progress towards rehabilitation all provide a basis for a substantial finding of special circumstances. In so finding I am mindful, as I when I considered the s 23(1) Crimes (Sentencing Procedure) Act matters, that the minimum period that should be imposed which she must spend in custody should properly reflect the gravity of her offences and the purposes of sentencing.

116. It is important the public understand that offenders who receive parole supervision are still subject to a sentence, and that the studies by the Bureau of Crime Statistics and Research indicate that those subject to support on parole commit fewer offences than those released unconditionally in the community.

Synthesis

117. All the material before me indicates that Ms Hatton was, apart from this significant offending, fundamentally a decent person, with a solid background in family support.  She had no need of additional money, she was not avaricious, she did not want a lifestyle any grander than the life she lived in the small town on the New South Wales South Coast.  Yet, despite these pro‑social attitudes and supports, once she started to steal from her employers, to pay gambling debts, she did not stop.  She then offended against their children. Trust was shown in her, because of her apparent good character and her capacity as an employed bookkeeper. 

118. She abused that trust. She did not stop. She did not seek help. She did not seek support from those who would have been available to support her; her husband, family and friends.  She just kept defrauding them. She continued to take funds, to ‘steal’ funds from those who trusted her explicitly to manage their income and business finances.

119. I accept that she has now taken steps to overcome her gambling addiction, and that reflects favourably on her prospects for rehabilitation.  I do not underestimate, nor should the community underestimate the lived experience of gaol.  I accept that she is suffering, and will continue to suffer situational depression, which exacerbates her risk of self-harm.  But I must return to the seriousness of the offending, the impact on each individual victim, and the repetitive, calculated nature of the offending. 

120. While I am heartened by her good prospects and accept that she is unlikely to offend again, sentencing has many purposes other than rehabilitation. Those in the community who t think that they can, even in the grip of a gambling addiction, take from those who trust them, must learn to think again. 

121. The indicative sentences reflect the 25 % reduction for the utilitarian value of the guilty pleas and the percentage reductions for the s 23 factors I have indicated. I have sought not to erode those benefits by the process of accumulation. I have tried to be as transparent as possible; I have to indicate individual sentences and then if anyone seeks to do the maths, I have rounded down to the offender's advantage

Orders

122. I indicate the following sentences;

1. Sequence 751: Taking into account the matter of Form 1, I indicate a sentence of 4 years 6 months

2. Sequence 753: I indicate a sentence of 2 years 11 months

3. Sequence 754 :I indicate a sentence of 2 years 7 months.

123. There will be an aggregate sentence of five years and six months imprisonment. There will be a non‑parole period of three years.  The non‑parole period will commence today, 21 July 2022; there being no pre‑sentence custody.  Hatton will be eligible for consideration for release to parole on 20 July 2025.  The balance of the sentence, two years and six months, will commence on 21 July 2025, expiring on 20 January 2028.

124. Pursuant to the Victims Rights and Support Act 2013, Part 6 Division 1, I direct that the following amounts be paid to the Registrar of the District Court at Wollongong for payment to Owen Wright, Tyler Wright, Michael Wright & Robert & Fiona Wright out of the property of Shane Maree Hatton by way of compensation for loss sustained by reason of the offence particularized as Dishonestly obtain financial advantage by deception of which she has been convicted.

125. I direct that the compensation in the amount of $647,000 be paid as follows:

• Sequence 751: Compensation be paid in the amount of $326,500 to Owen Wright

• Sequence 753: Compensation be paid in the amount of $262,500 to Tyler Wright

• Sequence 754: Compensation be paid in the amount of $20,500 to Michael Wright

• Sequence 750 (on Form 1): Compensation be paid in the amount of $18, 750 to Robert Wright & $18,750 to Fiona Wright.

To be paid within 28 days.

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Decision last updated: 20 February 2023