R v King

Case [2023] NSWDC 100 14 April 2023

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District Court

New South Wales

Medium Neutral Citation: R v King [2023] NSWDC 100
Hearing dates: 31 March 2023
Date of orders: 14 April 2023
Decision date: 14 April 2023
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See [93-94]

Catchwords:
CRIME — Fraud — Dishonestly obtain financial advantage by deception

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1
R v Cattell [2019] NSWCCA 297
R v Clarke [2019] NSWDC 2
Cooper v R [2021] NSWCCA 292
De Angelis v R [2015] NSWCCA 197
R v Elfar [2003] NSWCCA 358
Hall v The Queen [2021] NSWCCA 220
R v Holder [1983] 3 NSWLR 245
Imbornone v R [2017] NSWCCA 144
Johnston v R [2017] NSWCCA 53
Lai v R [2021] NSWCCA 217
Lloyd v R [2022] NSWCCA 18
Luong v R [2014] NSWCCA 129
McLaren v R [2021] NSWCCA 12
R v McGourty [2002] NSWCCA 335
Mill v The Queen [1988] HCA 70
R v Obbens [2022] NSWCCA 109
R v Palu [[2002] NSWCCA 381
R v Todd [1982] 2 NSWLR 517
R v Qutami [2001] NSWCCA 353

Texts Cited:
N/A

Category: Sentence
Parties: Rex (Crown)
Anthony Patrick King (Offender)
Representation: Counsel:
Morters for the Crown
Carty for the Offender

File Number(s): 2021/00130357
Publication restriction: N/A

JUDGMENT

Introduction and admissibility of reports

Anthony Patrick King appears for sentence in respect of three charges of dishonestly obtaining a financial advantage by deception in breach of section 192E(1)(b) of the Crimes Act. Each offence has a maximum sentence of 10 years imprisonment and there is no standard non-parole period. I take the maximum sentence into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offending so as to assist in arriving at the appropriate sentence.
There are three particular issues that arise in the case, the first of which is best dealt with at the outset. That first issue is whether or not reports by a psychiatrist and a psychologist (and perhaps even a sentencing assessment report) are admissible.
In support of his subjective case the offender seeks to rely upon a report of a psychiatrist, Dr Christopher Bench of 10 November 2022, and a report of Thea Gumbert-Jourjon, a psychologist dated 1 November 2018. The basis of the Crown’s objection is that the history given by the offender on which those reports are based is not verified on oath and is not tested. The Crown relied upon Lai v R [2021] NSWCCA 217. Notably in that case the histories that were given that were not verified on oath formed the basis of the consideration of the subjective cases. The passage relied on here by the Crown is the penultimate paragraph before the making of the orders in the decision of Justice Bellew. The point being taken now was not taken in Lai, and the passage is an observation as to appropriate practice. Bellew J endorsed the view…

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 King

Details

AGLC: R v King [2023] NSWDC 100
Case: [2023] NSWDC 100
Decision Date: 14 April 2023

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, King, against his conviction for fraudulently obtaining a financial advantage by deception. King was initially convicted in the lower court of obtaining $18,000 from a company by falsely claiming that he had a contract to supply goods. The appeal centred on the sufficiency of the evidence to support the conviction, specifically whether the prosecution had proven beyond reasonable doubt that King had acted dishonestly and with the intent to deceive.

The court was tasked with determining whether the evidence presented was sufficient to establish King's dishonesty and intent to deceive. The appeal hinged on the interpretation of statutory provisions and case law regarding fraud and deception. The court considered whether the evidence demonstrated that King had a dishonest intention and whether the deception was material to the company's decision to transfer the funds. The court examined the nature of the deception and the context in which it was carried out, assessing whether the deception was such that it could be considered dishonest according to Australian law.

The court concluded that the evidence provided was sufficient to support the conviction. The court found that the deception was material and that King's actions demonstrated a clear intent to deceive. The court held that the prosecution had successfully proven all elements of the offence of obtaining a financial advantage by deception. The appeal was therefore dismissed, and King's conviction was upheld. The court's decision was based on a thorough analysis of the evidence and applicable legal principles, affirming the lower court's findings.

Orders

Orders of the court

See [93-94]

Background

Background to the litigation

Full text does not contain this section.

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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Citations

R v King [2023] NSWDC 100

Most Recent Citation

R v Kosseifi; R v Sousan [2024] NSWDC 106

Cases Citing This Decision

R v Kosseifi; R v Sousan [2024] NSWDC 106
Citation 1 (Para 137)

…I agree with the analysis undertaken by Priestly SC DCJ in R v King [2023] NSWDC 100 and, as I have observed in other cases, notwithstanding the strong discouragement expressed by Bellew J, this Court regularly receives such material and continues to do so.…

See all citing cases →

Cases Cited

R v Obbens [2022] NSWCCA 109
Citation 1 (Para 63)

…As to the question of the delay the offender relied on the recent decision of Obbens [2022] NSWCCA 109. In that case the offender had committed a series of sexual offences. In 2016 he was sentenced for three counts occurring between 1987 and 1989. There were three separate victims. Then on 23 February 2022 he was se…
Lloyd v R [2022] NSWCCA 18
Citation 2 (Para 8)

…More recently was the decision of Lloyd [2022] NSWCCA 18. The point of that decision at [46] and [47] was to make a distinction between where objection is taken and where it is not or as referred to in paragraph 46 where the report is challenged or not, perhaps a relevant distinction in terminology given the weight…
Cooper v The Queen [2021] NSWCCA 292
Citation 3 (Para 59)

…simply to achieve financial gain, in circumstances where the offender has a past of adopting such a course. The Crown in this regard relied on Cooper [2021] NSWCCA 292 to make the point that even where an offender is suffering mental ill health, if the offender acts with knowledge of what he is doing and with knowle…
Hall v R [2021] NSWCCA 220
Citation 4 (Para 80)

…ng the appropriate aggregate sentence it will be necessary to apply the principle of totality. In that regard, I note in the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that what is required for a sentencing…
Lai v R [2021] NSWCCA 217
Citation 5 (Para 3)

…is that the history given by the offender on which those reports are based is not verified on oath and is not tested. The Crown relied upon Lai v R [2021] NSWCCA 217. Notably in that case the histories that were given that were not verified on oath formed the basis of the consideration of the subjective cases. The p…
McLaren v R [2021] NSWCCA 12
Citation 6 (Para 84)

…s on the guidance this may provide is well recognised due to the undoubted factual differences that will exist. That said the Crown relied on McLaren [2021] NSWCCA 12 from [81] where a number of “comparables” were referred to, including the case of de Angelis [2015] NSWCCA 197, relied on by the offender. In both th…
R v Cattell [2019] NSWCCA 297
Citation 7

…: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: Cahyadi v R [2007] NSWCCA 1 R v Cattell [2019] NSWCCA 297 R v Clarke [2019] NSWDC 2 Cooper v R [2021] NSWCCA 292 De Angelis v R [2015] NSWCCA 197 R v Elfar [2003] NSWCCA 358 Hall v The Queen [2021] NSWCCA 220 R…
R v Holder [2019] SASCFC 73
Citation 8 (Para 80)

…n that regard, I note in the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust t…
R v Clarke [2019] NSWDC 2
Citation 9 (Para 84)

…which were totally illusory. Again, the amounts involved were much greater than here (if the Commonwealth “risk” offence is excluded). Clarke [2019] NSWDC 2 was a case where a solicitor defrauded $9.7M and received a 6-year sentence and a non-parole period of 3 years, after a 25% discount for his plea, and 15% fo…
Imbornone v R [2017] NSWCCA 144
Citation 10 (Para 7)

…This topic is dealt with in the sentencing bench book at [1-490] where there is a passage from the judgment of Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour said:…
Johnston v R [2017] NSWCCA 53
Citation 11 (Para 84)

…ived a 6-year sentence and a non-parole period of 3 years, after a 25% discount for his plea, and 15% for assistance. In the case of Johnston [2017] NSWCCA 53 an accountant using false invoices obtained $1.25M over 3 years and received a term of 6 years 6 months with a non-parole period of 4 years.…
De Angelis v R [2015] NSWCCA 197
Citation 12 (Para 84)

…at said the Crown relied on McLaren [2021] NSWCCA 12 from [81] where a number of “comparables” were referred to, including the case of de Angelis [2015] NSWCCA 197, relied on by the offender. In both those cases, McLaren and de Angelis, the head sentence was 12 years, with non-parole periods of 9 years and 8 years r…
Luong v R [2014] NSWCCA 129
Citation 13 (Para 73)

…The Crown relied on the case of Luong v R [2014] NSWCCA 129 as to totality and delay. In that case the facts were quite different; Mr Luong was still in custody at the time of the later sentencing, and his offending varied, with the later offence which was sentenced first being a drug importation matter, and the oth…
Pfitzner v R [2010] NSWCCA 314
Citation 14 (Para 33)

…xpress remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise…
Butters v R [2010] NSWCCA 1
Citation 15 (Para 18)

…iven to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-e…
Cahyadi v R [2007] NSWCCA 1
Citation 16 (Para 81)

…Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one offence can comprehend the criminality of another:…
Munro v R [2006] NSWCCA 350
Citation 17 (Para 17)

…to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19].…
R v Elfar [2003] NSWCCA 358
Citation 18 (Para 3)

…Lai , and the passage is an observation as to appropriate practice. Bellew J endorsed the view set out in the judgment of Justice Whealey in Elfar [2003] NSWCCA 358 at [25], where his Honour said:…
R v Palu [2002] NSWCCA 381
Citation 19

…014] NSWCCA 129 McLaren v R [2021] NSWCCA 12 R v McGourty [2002] NSWCCA 335 Mill v The Queen [1988] HCA 70 R v Obbens [2022] NSWCCA 109 R v Palu [[2002] NSWCCA 381 R v Todd [1982] 2 NSWLR 517 R v Qutami [2001] NSWCCA 353 Texts Cited: N/A Category: Sentence Parties: Rex (Crown) Anthony Patrick King (Offender) Represe…
R v McGourty [2002] NSWCCA 335
Citation 20

…n v R [2017] NSWCCA 53 Lai v R [2021] NSWCCA 217 Lloyd v R [2022] NSWCCA 18 Luong v R [2014] NSWCCA 129 McLaren v R [2021] NSWCCA 12 R v McGourty [2002] NSWCCA 335 Mill v The Queen [1988] HCA 70 R v Obbens [2022] NSWCCA 109 R v Palu [[2002] NSWCCA 381 R v Todd [1982] 2 NSWLR 517 R v Qutami [2001] NSWCCA 353 Texts Ci…
R v Qutami [2001] NSWCCA 353
Citation 21 (Para 6)

…In Qutami itself [2001] NSWCCA 353 the passage often referred to in the judgment of Smart J is in the form of an observation and is as follows:…
Mill v The Queen [1988] HCA 70
Citation 22 (Para 73)

…was sentenced first being a drug importation matter, and the other offence being a fraud concerning real estate. Interestingly that case, citing Mill (1988) 166 CLR 59, stated that the approach as to totality is “to ask what would be likely to have been the effective head sentence and non-parole period if the offend…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v King [2023] NSWDC 100
Hearing dates:	31 March 2023
Date of orders:	14 April 2023
Decision date:	14 April 2023
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See [93-94]
Catchwords:	CRIME — Fraud — Dishonestly obtain financial advantage by deception
Legislation Cited:	Crimes Act1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 R v Cattell [2019] NSWCCA 297 R v Clarke [2019] NSWDC 2 Cooper v R [2021] NSWCCA 292 De Angelis v R [2015] NSWCCA 197 R v Elfar [2003] NSWCCA 358 Hall v The Queen [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Imbornone v R [2017] NSWCCA 144 Johnston v R [2017] NSWCCA 53 Lai v R [2021] NSWCCA 217 Lloyd v R [2022] NSWCCA 18 Luong v R [2014] NSWCCA 129 McLaren v R [2021] NSWCCA 12 R v McGourty [2002] NSWCCA 335 Mill v The Queen [1988] HCA 70 R v Obbens [2022] NSWCCA 109 R v Palu [[2002] NSWCCA 381 R v Todd [1982] 2 NSWLR 517 R v Qutami [2001] NSWCCA 353
Texts Cited:	N/A
Category:	Sentence
Parties:	Rex (Crown) Anthony Patrick King (Offender)
Representation:	Counsel: Morters for the Crown Carty for the Offender
File Number(s):	2021/00130357
Publication restriction:	N/A