R v Oberg; R v Peters

[2019] NSWDC 697

District Court

New South Wales

Medium Neutral Citation:	R v Oberg ; R v Peters [2019] NSWDC 697
Hearing dates:	25 October 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Judge J Priestley
Decision:	Mark Peters – Sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years. Colin Oberg – Sentenced to an aggregate term of imprisonment of 9 years with a non-parole period of 5 years and 3 months
Catchwords:	CRIMINAL LAW - Sentence – Fraud - Totality - Organised, pre meditated and calculated offending - prolonged period of illegal behaviour.
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	Postiglione v R [1997] HCA 26 R v MAK (2006) 167 A Crim R 159 R v McInerney (1986) 42 SASR 111
Category:	Sentence
Parties:	The Crown Colin James Oberg - Offender Mark Arthur Peters - Offender
Representation:	Counsel: Mr Leask for the Crown; Mr Pickering for Mr Oberg Mr Apostle for Mr Peters   Solicitors:
File Number(s):	2014/00100189;2017/00249689

Judgment

The proven offences

1. On Tuesday 25 June 2019 the jury in this matter returned verdicts of guilty in respect of all but one of the 15 charges on the indictment. The exception, count 10, was the subject of a directed verdict of not guilty on the application of the Crown. The reference hereafter to “charges” or “counts” excludes count 10.

2. The facts of each of the charges involved the use of cheques, alleged to be valueless and clearly found to be so by the jury. The purported value of the cheques ranged from $342 (count 15 against Mr Peters) to $1.5M (count 13 against Mr Oberg).

3. All of the charges but one was a charge under the now repealed section 178BA of the Crimes Act. That section carries a maximum sentence of 5 years imprisonment. The one exception was a charge (count 15 against Mr Peters) under section 192E of the Crimes Act, which carries a maximum sentence of 10 years. That section is the amended version of the earlier section referred to and reflects the fact that the offence occurred some years after the other offences charged. Each of the charges alleged that the accused had by deception dishonestly obtained a financial advantage. In each case the deception was a false representation, and with one exception that false representation was that the cheque, relevant to the charge, was a cheque for value. The one exception was count 1 against Mr Peters only, where the deception was the false representation of a promise to pay $2000 for legal fees. This act was followed by providing a cheque for $2000 which was valueless. In that case the dishonesty was the absence of any intention to pay, and the financial advantage was the evasion of payment of the legal fees. In all the other charges, the dishonesty was knowing the cheque being presented had no value, and the financial advantage was the obtaining of credit for the face value of the cheque.

4. There were four charges where both accused were charged (charges 2, 7, 8 and 9), there were four charges in respect of which Mr Peters alone was charged (charges 1, 3, 4 and 15) and there were six charges where Mr Oberg alone was charged (charges 5, 6, 11, 12, 13 and 14).

5. The elements of each charge found by the jury to have been proven beyond a reasonable doubt were that the accused had:

1. By deception, that is, intentionally or recklessly deceiving another;

2. Caused the gaining of a financial advantage for themselves or another;

3. That in so acting the accused had acted dishonestly; and

4. Had thereby obtained a financial advantage.

6. In determining sentence any matter I take into account adverse to the offenders needs to be a finding beyond reasonable doubt; any matter in an offender’s favour need only be found on the balance of probabilities.

7. The alleged, and found, financial advantage varied between the charges. A summary of the charges and their elements, found to have been established beyond a reasonable doubt, is set out in the following table: 

In the Summary of each count on the indictment by reference to elements

No	Acc	Deception / false representation	Dishonesty	Financial advantage	Date
1	MP	Representing he would pay $2000 for legal services	No intention of paying	Evasion of liability for payment of fees	18.4.07
2	CO / MP	Representing to NAB that an ANZ cheque for 50K was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $50,000	28.5.07
3	MP	Representing to NSW RMS that an ANZ cheque for $1,531, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Evaded payment of fees of $1531	30.7.07
4	MP	Representing to RMS that an ANZ cheque for $654, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Evaded payment of fees of $654	26.11.08
5	CO	Representing to Westpac that a Citibank Ready Credit cheque for $150,000, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $150,000	4.3.09
6	CO	Representing to NAB that a Westpac for $150,000, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $150,000	4.3.09
7	CO / MP	Representing to NAB that a ANZ cheque for 150K, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $150,000	3.4.09
8	CO / MP	Representing to NAB that a St George Bank for $150K, was a cheque for value.	Knew the cheque had no value (ie knew the repn was false)	Obtained credit of $150,000	3.4.09
9	CO / MP	Representing to NAB that a St George Bank cheque for $200K was a cheque for value.	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $200,000	3.4.09
10	CO	Directed not guilty verdict	N/A
11	CO	Representing to Citibank that a Westpac cheque for $750,000, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $750,000	15.6.09
12	CO	Representing to NAB that Citibank cheque in the sum of $750,000, was a cheque for value.	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $750,000	15.6.09
13	CO	Representing to NAB that a Westpac for $1.5M, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $1.5M	23.6.09
14	CO	Representing to CBA that a NAB cheque for $670,035, was a cheque for value	Knew the cheque had no value (ie knew the representation was false)	Obtained credit of $670,035	23.6.09
15	MP	Representing to RMS that an ANZ cheque for $342, was a cheque for value.	Knew the cheque had no value (ie knew the representation was false)	Evaded payment of a fees of $342	30.4.12

8. The case was largely a documentary one, with exhibit A providing the overall “roadmap” of the offending. Exhibit A was a folder containing a diagrammatic representation of each charge, showing in all cases but charges 1, 3, 4 and 15, the drawing of the cheque, the deposit of the cheque into an account either in the name of Mr Oberg, and or an account controlled by him, and with some or all of the funds generated by what might be called the false credit then being dispersed.

9. In the case of charges 1, 3, 4 and 15 exhibit A shows the cheques being deposited either to Moores solicitors (count 1) or to the RMS, later to be dishonoured.

10. There is little direct evidence from the Crown as to who did what in terms of cheque preparation and actual depositing of the valueless cheque and then the actual physical drawing on that cheque. Suffice to say the cheques on the eight charges involving Mr Peters were signed by him (compare the signatures on exhibit F to the agreed signatures on exhibit BF, and not to forget the jury’s verdict), and there is no doubt that Mr Oberg controlled the Oberg accounts. I find the cheques purportedly signed by Mr Peters were in fact signed by him as it is a necessary finding to support the jury’s verdicts, a conclusion supported by the fact the signatures on those cheques appear the same as signatures on other documents signed by Mr Peters. There was no real issue that the Oberg accounts were controlled by Mr Oberg, which was plainly a matter accepted by the jury and I so find. In this regard I note the presentation of the cheques by Mr Oberg was conceded in his opening, with the issue being identified as whether he had a dishonest intent at that time.

11. The background to the union of Mr Peters and Mr Oberg is that they met in the mid to late 90s through business. At that time Mr Peters operated a pest control business and Mr Oberg was an accountant. It came to pass that Mr Oberg did accountancy work for Mr Peters. Mr Peters was also involved in activities relating to horses. By 2006 as a result, according to Mr Peters, of his horse activity involving a business known as Written Bloodstock, Mr Peters was declared bankrupt.

12. At this time according to both Mr Peters and Mr Oberg, Mr Peters owed Mr Oberg some $150,000 said to be made up of a personal loan of about $20,000 and unpaid accountancy fees of about $130,000. There was some documentary support for this debt as it is listed in Mr Peter’s list of creditors in the report to creditors by his bankruptcy trustee dated 6 July 2006 (exhibit Oberg 7). Just whether there was in fact such a debt I cannot determine given the defendants’ lack of credibility (as to which see below) and that the asserted debt figure is based on information from Mr Peters. The case of Mr Oberg was that he was invited by Mr Peters to become involved in an investment proposal, which led to the drawing of cheques which were intended to be put towards that investment. A rejection of this evidence is not necessary to support the verdicts. All that is needed is that the initial creation of the credit in the various accounts constituted the offence; whether the valueless cheques were then put towards a legitimate investment or not is no defence to the charge. As will be apparent below, I am satisfied beyond a reasonable doubt that there was no such “investment scheme”.

Joint counts: Counts 2, 7, 8 and 9

13. These are the charges against both of the offenders. The Crown alleged that the offenders were engaged in a joint criminal enterprise, a submission plainly accepted by the jury. What occurred here in each case was the drawing of a cheque on the closed accounts of companies formerly under the control of Mr Peters, which were then deposited into an NAB account operated by Mr Oberg. Each of the cheques were signed by Mr Peters and either the originals, or copies, or both became exhibits. Both offenders knew the cheques were valueless. The stated value of the cheques for each charge respectively was $50,000, $150,000, $150,000 and $200,000, a total of $550,000. Once in the NAB account of Mr Oberg, the monies were quickly drawn against and applied in various ways, predominantly by being deposited into an account of one Marie Evensen (“the Evensen account”).

14. The offences were complete upon the credit being created into the NAB account.

15. For reasons not entirely clear, Mr Oberg had an agreement with his bank, NAB, that he could draw against uncleared funds. So in each of these charges, the large sums drawn on closed accounts would be credited to the NAB account, and could then be drawn upon without needing to be cleared. This is shown diagrammatically by exhibit “A”, on the pages marked annexure D and H. In respect of count 2 there was a cheque for $50,000 drawn in favour of a “Constantine Potniotis”, which was then reversed the next day, and an internet transfer to another account of Mr Oberg for $30,000, and those funds were then drawn on from that second account. Annexure H shows a cascading manner of payments to various accounts of Mr Oberg, from which many payments were made, some of which were identified as expressly benefitting Mr Peters. It also showed a total of approximately $212,000 being deposited into the “Evensen account”.

16. Mr Peters denied signing these cheques; the jury must have rejected this in order to convict. Both offenders are heavily involved in this conduct; Mr Peters is signing the knowingly valueless cheques, and Mr Oberg is in control of the account into which they are deposited which can be drawn from before clearance, and which clearly happens. A feature of Mr Peters’ conduct is his steadfast refusal, even after the guilty verdict, to accept responsibility for his actions. Mr Peters’ default position is to blame it all on Mr Oberg. The simple fact of the matter is that Mr Peters signed cheques to a value of $550,000 on closed accounts, knowing them to be valueless, and knowing they would be deposited into an account of Mr Oberg, and then create credit, which he, Mr Peters, benefitted from. $550,000 is a lot of money. It equates to more than 5 times the average adult annual wage in this country. The fact that the impact of that loss was upon a bank is not a mitigating factor; rather the circumstance that it was not fraud from a client of Mr Oberg (which was the position in his earlier offences dealt with by Judge Woodburne) simply means the punishment may have been worse in those circumstances.

17. A characteristic of both offenders is their brazenness. These four charges bear this out. It is true the offences are not sophisticated; the fraud indeed is very simple. The offending conduct is however not only brazen, but calculated, considered and planned. The offenders knew what they were doing. It was not opportunistic. Significantly count 2 occurred in May 2007 and counts 7, 8 and 9 were carried out in April 2009. This was no spur of the moment operation. Perhaps they thought they had evaded detection and were emboldened to further offend? The point is the offending occurred at two fairly distant dates, a factor I take into account in determining the objective seriousness of the offending.

18. There is little to distinguish the objective seriousness of these four offences, other than the amounts involved. Nor do I see a basis for any meaningful distinction as to objective seriousness of the offences in relation to Mr Peters as opposed to Mr Oberg. Counts 7, 8 and 9 were carried out at the same time. I would assess the objective seriousness of count 2 as being in the mid range and the objective seriousness of counts 7, 8 and 9 as being in the upper range.

Mr Peters: counts 1, 3, 4 and 15

19. I have touched on count 1 above. The amount of money involved is small. The submission for Mr Peters that this was a “tactical” or “strategic” count to demonstrate his predilection for obtaining financial benefits by using valueless cheques is well founded. The same could be said of counts 3, 4 and 15. The amounts involved in counts 3, 4 and 15 were $1531, $654, and $342. The fee that went unpaid in respect of count 1 was some $1500. The total involved in these charges is therefore approximately $4000. As to count 1 a copy of the cheque was Ex B; Mr Peters denies signing the cheque (as on his story that was the responsibility of another advisor, this time a solicitor); even if that be right (which I find it is not for the reasons stated above), Ex AE is a fax showing a deposit stub sent to prove the deposit was made so that the services would be provided. Mr Peters denied sending this fax. Even if that is so, Mr Peters admitted asking the solicitor for payment details before this fax was sent, itself a clear representation he would pay. Knowing such a deposit of the cheque he signed is valueless, this is fraudulent trickery at is most base, albeit for a modest sum. Notably on this charge the deception is not the representation that the cheque concerned was for value, but the representation by Mr Peters that he would pay the fee. The jury was necessarily satisfied that this representation was made.

20. In respect of count 4 the valueless cheque was passed for the registration of a vehicle used by but not registered to Mr Peters, the day after Mr Peters was pulled over by police for the vehicle not being registered. Mr Peters denied it was his signature on the cheque. Plainly the jury rejected these denials of the signature not being Mr Peter’s on the cheques the subject of counts 3, 4 and 15.

21. In terms of objective seriousness, these three matters must be considered to be in the low range.

22. Despite these minor amounts, there was no acknowledgement by Mr Peters of wrongdoing. In addition to his protestations that these matters were the responsibility of others, he also denied having the use of the car the subject of the RMS charges, and even when confronted with video evidence of being pulled over by police for the car being unregistered only begrudgingly made some concession as to car use; there was no concession as to the larger issues of the representation to Moores, or the signing of the cheques.

Mr Oberg: counts 5, 6, 11, 12, 13 and 14

23. These counts concern Mr Oberg alone, and are distinguishable from the joint counts by reason of the valueless cheque being drawn against an account under the control of Mr Oberg, as opposed to being accounts controlled by Mr Peters.

24. The jury must have found that Mr Oberg drew the cheques or caused them to be drawn, knowing they were valueless. The sums involved here are large, specifically and respectively $150,000, $150,000, $750,000, $750,000, $1.5M and $670,035. Mr Oberg’s involvement here is greater than in the joint counts, and the money involved is significantly larger. These six offences were carried out on 3 separate days of 2009, being the 4 March, 15 June and 23 June.

25. Again this is plainly organised, pre meditated and calculated offending, involving large sums of money. I acknowledge that the loss here is suffered by a bank, and treat that aspect in the way indicated above; not as a matter of leniency, but that there are more potential vulnerable l victims.

26. I would assess the objective seriousness of counts 5 and 6 as mid range, and counts 11, 12, 13 and 14, given their markedly higher amounts, as in the upper range.

27. In determining the ultimate sentences for these offences it must be recognised that whilst 6 cheques are involved and six “false credits” were created, counts 6, 12 and 14 were cheques drawn on an Oberg controlled account into which the cheques the subject of offences 5, 11 and 13 had been deposited. In dollar terms, and not “false credit” terms, the financial advantage in practical terms of these six offences is the false credit of offences 5, 11 and 13, being $150,000, $750,000 and $1.5M, a total of $2.4M. On this approach, if the overall offending of Mr Oberg is sought to be quantified, the figure arrived at is the total of all 10 counts less the amounts of counts 6, 12 and 14. This results in a figure of $2,950,000 instead of $4,520,035.

The subjective cases

Both defendants

28. A key feature of the trial was the assertion by both defendants of their involvement in an investment scheme as being the explanation of what was occurring in respect of all counts involving Mr Oberg. It is a significant matter, because the adoption by both defendants of this story shows them to be men of no credibility, no remorse, to possess a total disregard for the truth, and to be men who treat those they deal with, let alone jury members, as, to put it mildly, both guileless and inordinately gullible.

29. In his evidence in chief Mr Peters claimed in about 2006 when his Written Bloodstock business had severe financial problems, a man named David Knoblet told him that they had monies tied up and David needed funds to get those monies released. On this version, Mr Peters approaches Mr Oberg for money to give to David in order to get back money that Mr Peters has an entitlement to. The circularity and unlikelihood of this only needs to be stated to be apparent, particularly when viewed against a total lack of documentation. Mr Peters said it was money that was tied up, and repeatedly made assertions to the effect that it had to do with computers and a private banking type operation. What exactly that means was never made clear, most likely I would venture to suggest because it is simply gobbledegook.

28. According to Mr Peters what then developed was an investment scheme, a description far too grandiose and plainly false and seeking to give some sheen of legitimacy to gallingly illegal behaviour, by which he, Mr Peters, would receive text messages from Mr Maiolo, apparently passing on messages from David, which he would send to Mr Oberg, who would then “invest”, that is, deposit valueless cheques and then draw against them, and then pay them to the account of Ms Evensen. The story then continues with what I consider to be an affected confusion as to the identity of Ms Evensen. The short point of all this is nothing supports any such investment, and the fundamental premise of it of requiring a person to pay more money to enable them to get back their own money, is without more, nonsensical.

29. Mr Oberg’s position is no more edifying than Mr Peters; it is perhaps a little less prominent due to the fact that the jury and the Court witnessed a live performance of the Mr Peters fantasy in the witness box, as opposed to the Mr Oberg performance witnessed via a recorded interview. The crux of Mr Oberg’s record of interview was to say he was making a large investment in a US bank that he does not know the name of, does not know its address, does not know of its directors, and which he does not suggest issues any receipts or certificates in relation to the investments. Mr Oberg’s story was to say the money is provided to a Mr Maiolo, (a former concreter and barista, and according to his former wife Ms Evensen, a professional gambler) who then passes it to “the bank”. For the purposes of these sentencing reasons I am satisfied beyond a reasonable doubt that this is a totally false account. I base this conclusion on the total absence of any, or any reliable corroborating evidence, and the sheer unlikelihood of any such investment scheme operating in such a way. The conclusion is only reinforced by Mr Oberg stating that he had invested $20M into the Evensen account; the greater the amount of a legitimate and real investment, the more likely there may be some record of it.

30. If the story required any other cause for incredulity, it comes in the form of the mysterious “David”, (dubiously identified by Mr Peters as David Knoblet) an apparently integral link between Mr Oberg and Mr Peters and the conduct of the investment operation. Like the bank, David has no certain name and certainly no documented name, no fixed address, nor apparently, physical form. Just who or what he is cannot be determined; there seemed to be a suggestion that “David” was in fact Mr Peters, but I do not make such a finding.

31. These matters are relevant when considering issues of remorse and the likelihood of reoffending, and the need to deter and to punish. I find the likelihood of either of these two offenders reoffending to be high contrary, in Mr Peters’ case, to the psychologist report he relies on and the SAR.

Mr Peters: the subjective case

34. What I conclude from the above is Mr Peters is dishonest, and has a history of tricking people and organisations into doing things that benefit him, without having any intention to pay them for their work or services. To use the vernacular, he has more front than Myers, or an almost immeasurably thick skin. I observed him closely in the witness box. The story of the US bank to which these monies (concerning counts 2, 7, 8, and 9) purportedly had to be paid so that the bank would release monies that had earlier been paid could be described in an understated way as fantasy. As noted above this was a bank that had no known address; no known email; no known contact beyond an alleged person named “David (K)noblet”, (a name unable to be located by police in their investigations), who was not in fact part of the bank (supposedly) but an intermediary; the bank issued no documents; the bank gave no receipts; the bank kept no accounts; the bank issued no statements. Alarmingly, as I observed Mr Peters in the witness box, he was giving evidence concerning these matters which he appeared to expect people to believe. I find that Mr Peters knew the money was not going to the imaginary bank, because of the fanciful nature of his story and because he knew the money was sent to the Evensen account. If the money is for the bank, why send it elsewhere first? Mr Maiolo was in charge of the Evensen account. Much money was withdrawn from the Evensen account by way of auto teller machines, in cash, at locations in or near the Adelaide casino. That in itself is clearly damaging to the US bank story, and the position worsens due to the fact Mr Maiolo admitted in his evidence in chief to receiving large sums of money from Mr Peters for the purpose of using those funds to gamble, and referred also to Mr Peters putting on bets himself, which Mr Peters denied. Whilst there were significant issues as to the credibility of Mr Maiolo, nothing he said erodes the basis for my findings as to the nature of the purported “investment scheme”.

35. Mr Peters’ evidence, and his manner of giving it, leads me to conclude he is a con man of the highest order; a person who presses on with a falsehood no matter how illogical in the hope that he will remain undetected.

36. The subjective case presented for Mr Peters relied on materials contained in a bundle which was marked Peters Exhibit 1. This included property ownership and company searches the point of which was to demonstrate Mr Peters and his wife’s poor financial position. There was also an Australian taxation office notice of legal action against Mr Peters’ wife Tina Peters seeking an amount of some $1.4 million. I accept that the financial position of the Peters is parlous. I fail to see why such a fact is of much significance if any to mitigate the crimes he has committed of obtaining a financial advantage of approximately $550,000. Presumably the submission is that he has not been successful in his illegal activity; or put another way that not only have the victims of Mr Peters suffered a financial misfortune but he too is financially unfortunate. Nevertheless I am conscious of the financial circumstances of Mr Peters in determining the appropriate sentence.

37. Also part of Exhibit 1 for Mr Peters was a psychologist’s report of a Dr Marcelo Rodriguez. The psychologist records that Mr Peters is 55 years old, lives with his wife and their daughter Anastasia age 22 and that he currently has a job for a solar panel installation company and takes no psychotropic medication nor does he consult a mental health professional. His personal history is recorded as having been born in Glen Innes the youngest of four children with normal developmental milestones. Perhaps tellingly he does not see his brother or sisters due to estrangement after he asked his mother for financial assistance after the loss of his business. There is insufficient information to draw adverse conclusions to Mr Peters here but in the light of the manner in which he has conducted himself outlined above one can envisage the fertile ground for such a disagreement.

38. Mr Peters’ parents separated when he was about 11 years old and he witnessed some domestic violence and his mother abused valium. He lived predominantly with his mother thereafter but had a better relationship with his father than with his mother. He went to boarding school and was an average student and his schooldays appear uneventful. He became an electrician. He recounts to the psychologist the Written Bloodstock venture and its unsuccessful conclusion.

39. He has been with his wife Tina for 23 years and in addition to their daughter Anastasia, Mr Peters was the stepfather to his wife’s daughter Courtney, now 33.

40. His medical history both physical and mental is relatively uneventful. He has no history of substance abuse.

41. A mental status examination revealed nothing of note, and no evidence of psychosis though with some deficit of memory noted. In terms of diagnosis the psychologist notes Mr Peters showed signs of an inability to express his emotions which can sometimes be manifested after a lengthy period of stress

42. The psychologist assessed Mr Peters as being in the low risk of reoffending range. This was based on his criminal history (see below) and an assertion that he had engaged in positive educational and vocational activity throughout his life and has the support of his family. Adversely it was noted that he has a history of problems with employment.

43. As indicated above my view is that in circumstances of a total lack of remorse (and again see my comments below) and an almost, if not total lack of acceptance of his wrongdoing, his repeated blaming of others for his misfortunes and his prolonged and continuing maintenance of such fanciful tales as were told to the Court and the jury, together with my assessment of the character of Mr Peters which for convenience could be referred to as brazenness, I have absolutely no confidence that he will not reoffend. I would place him at a high risk of reoffending.

44. In support of those comments just made as to a lack of remorse and maintaining his position of denial is the passage on page 5 of the psychologist’s report under the heading attitude towards the offences. In that passage Mr Peters gives an account to the psychologist that he was not aware that his accountant Mr Oberg was cashing cheques from businesses that had been made insolvent. Mr Peters then told the psychologist that it was impossible for people to understand including the Court the complexity of his business transactions which he found frustrating. He told the psychologist he trusted Mr Oberg and had no reason to doubt his credibility and was astonished that banks would simply pay out cheques with insufficient funds.

45. What is astonishing is that Mr Peters should say such a thing. Take for example Counts 7, 8, and 9. Although not proven to be insolvent companies the three companies on which the cheques were drawn in those instances where the three pest control companies operated by Mr Peters which at the time were not trading and in respect of which the accounts were closed. If you marry that up with what he is telling the psychologist it means he is giving Mr Oberg cheques totalling $500,000 which he knows are valueless and then having been found guilty by a jury still persists in telling the psychologist that he is astonished that the banks would pay out on those cheques. Why would he ever think to draw the cheques in the first place knowing them to be valueless? This is a total abdication of any responsibility on the part of Mr Peters and reinforces the view that I have expressed above of a person prepared to maintain a nonsense in the vain hope that someone somewhere in the world would be gullible enough to believe it.

46. The psychologist then goes on to make an argument as to why Mr Peters has good prospects of rehabilitation. There are a number of points made favourably to Mr Peters that are undoubtedly true such as: not being a victim of child abuse; not being involved with organised crime; not having a drug or alcohol problem; and not having profited from the offences. All this is true but hardly conclusive of rehabilitation in respect of offending of the type under consideration. Furthermore the last two bullet points on page seven it is said that he has cooperated in the investigation and that “it is likely that he believed wholeheartedly in his business ventures, trusted Mr Oberg perhaps to the degree that he may have shown some deficits in judgement”.

47. The psychologist gives no basis for saying Mr Peters cooperated with the investigation and certainly his maintenance of his version of events throughout the trial and now post verdict has not assisted the investigation. As to the last bullet point about believing wholeheartedly in his business ventures then if that is supposed to mean that he wholeheartedly believed in the alleged investment involving David and Mr Maiolo, then for the reasons outlined above I reject that opinion which I note is not given on any particular basis. It may be that in the psychologist Mr Peters has found the one person on planet Earth that may actually believe the views he is expressing; I find it difficult to accept that any considered view of a person appraised of all the facts could express such a view. Suffice to say I consider the prospects of rehabilitation for the reasons outlined above as poor.

48. The psychologist, whose views now must be viewed with some scepticism given the conclusion as to rehabilitation and their lack of support makes a further bare assertion as to the adverse impact of incarceration. I do not doubt that incarceration will have a negative impact on Mr Peters but there is nothing in this report to show the effect on Mr Peters is any more significant than to any other person entering prison for the first time.

49. Forming part of Exhibit 1 for Mr Peters was a letter to the Court written by his wife Tina. She describes a loving and caring husband who has been a good father to her daughter Courtney and their daughter Anastasia. The picture she paints of Mr Peters is far removed from the picture painted by his appearance in Court. The letter does however highlight the point that putting aside the 2012 offence there has been no offending of this type since 2009, though there was a fairly blatant act of dishonesty in the events of 2014 that appear on his criminal history. The letter from Mrs Peters demonstrate how a persons character can be multifaceted and I take into account her heartfelt views in determining the outcome of this sentencing hearing. To a similar effect are the letters to the Court of Mr Peters’ two daughters Courtney and Anastasia. There was also a supportive reference from his current employer as well as a close family friend Julie Anne Berzins.

50. The sentencing assessment report, as far as it goes, confirms the background matters and present circumstances of Mr Peters as out lined above. Adverse to him is that under the heading attitude it is recorded that he was consistent in denying any wrongdoing on his part and that he appeared to shift blame onto his accountant. A slight sliver of light emerges when Mr Peters does indicate he accepts responsibility as the owner of the cheques stating he was naive and he should have been more aware. This report also notes that he acknowledges the impact of the offences on the bank and that he can empathise with anyone who lost money. Notably this is a recognition of the impact of the offences but not of his wrongdoing, however I will not take this interpretation into account adverse to Mr Peters. The report contains a bare assertion of a low risk of reoffending based on the level of service inventory-revised. For reasons explained above I reject that view. Mr Peters is considered suitable for community service work by the SAR.

51. In the submissions on behalf of Mr Peters it was acknowledged that there is no entitlement to any discount on sentence due to any guilty plea. There was an un-evidenced submission about Mr Peters being willing to resolve the matter and plead guilty but the matter did not resolve due to Mr Oberg’s position. I do not see the logic of that submission; regardless of Mr Oberg’s position it was always open to Mr Peters to enter a plea of guilty. Furthermore to talk in terms of willingness to reach a compromise does not assist without knowing what the compromise may have been. The submission is not made in support of a submission of contrition or remorse but rather just to support the submission of willingness to assist to some degree in the administration of justice.

52. It is conceded that in respect of counts 7, 8 and 9 the section 5 Crimes (Sentencing Procedure) Act threshold has been crossed. Doubtless it is intended to be submitted, and I agree, that threshold is not crossed in respect of counts 1, 3, 4 and 15 due to the modest amount of money there involved. In my view that threshold is crossed in respect of count 2 also. This conclusion as to counts 2, 7, 8 and 9 is firmly reinforced due to the lack of insight contrition and remorse and likelihood of reoffending and lack of rehabilitation discussed above. Whilst making this concession as to counts 7, 8 and 9, the submission for Mr Peters would appear to be that an intensive correction order should be made so that the term of imprisonment is not spent in custody.

53. It is submitted and well-founded on authority that white-collar crime does not inevitably lead to full-time prison. I accept that proposition. The question is what is the appropriate sentence on the facts of this case.

54. I have considered the submissions made as to the objective seriousness of Mr Peters offending. Those submissions do not offer any ultimate assessment of the objective seriousness of the offending. To the extent the matters raised have not been dealt with above I note the reliance on the fact that counts 7, 8 and 9 occurred on the one day. I note count 2 involving $50,000 occurred some two years before. I consider the submission of an unknown motive of little assistance to Mr Peters. What we know beyond reasonable doubt is that he participated in a scheme which saw him fraudulently obtain monies to a total of some $550,000 for his own financial advantage. I reject the idea that Mr Peters’ part in counts 2, 7, 8 and 9 was minimal. To submit that Mr Peters role was “by and large simply provide signed cheques” is like saying in respect of a negligent driver that all he or she did was drive the car. The cheques which were simply signed happened to be the cheques on accounts known to be closed and known to be valueless to a value of $550,000 so far as the joint charges are concerned.

55. The next part of the submissions is a continuation of the cutthroat defence in that it focuses on Mr Oberg and seeks to blame Mr Oberg in a way to detract blame from Mr Peters. Regardless of just how morally culpable Mr Oberg may be does not lessen the moral culpability or involvement of Mr Peters; moral culpability does not come in set fixed amounts to be shared amongst offenders. The submission goes on to emphasise the lack of clear evidence showing direct receipt of money by Mr Peters. To a minor extent this is actually contradicted on the evidence due to the use of a bank card in the name of Mr Oberg by Mr Peters, which the evidence showed had money paid into it which had its source as the “false credits”. On the larger level in light of the verdicts it cannot be said Mr Peters was not financially advantaged.

56. The principle of parity needs to be considered. My view is that as between Mr Peters and Mr Oberg the moral culpability and the objective seriousness of the joint offences that are counts 2, 7, 8, and 9 is equal for the reasons discussed above. Where the parties become very distinguishable is that the remaining counts against Mr Peters are negligible whereas the remaining counts against Mr Oberg are very significant.

57. Contrary to the submission made on behalf of Mr Peters, the fact that Mr Oberg may receive a lesser sentence due to the principle of totality when considered with the offences he is already incarcerated for does not necessarily result in Mr Peters receiving a comparably reduced sentence. As was said in Postiglione v R [1997] HCA 26 in the joint judgment of Dawson and Gaudron JJ:

“And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence[12] or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”

58. Mr Peters criminal history shows one charge of a mid-range PCA in 1990 which I consider of no consequence in my considerations and one charge of make a false or misleading statement to an authority for a benefit in 2014 for which he received a six-month bond. That is an offence in respect of which the judgment was made available to the court and the facts there involved altering a significant number of documents. It is not a negligible offence. In my view Mr Peters is not entitled to the same degree of leniency as somebody without a record but I do take the fact that there has only been the one prior charge of significance into account. An interesting point arises here, relevant to both Mr Peters and Mr Oberg. In the case of Mr Peters, it is that at the time of the offending now being dealt with he had no record outside the 1990 PCA charge, but by the time of this sentence has the 2014 offence on his record. R v MAK (2006) 167 A Crim R 159 and the cases it refers to makes plain that it is important to take into account all that is relevantly known about the offender at the time of sentencing. A clear record suggests two main things; firstly a person of good character, an upright citizen deserving of leniency, and secondly a person unlikely to reoffend. In R v McInerney (1986) 42 SASR 111, King CJ considered the “later” offences to be relevant only in special circumstances, and noted that at the time of the earlier offending the offender’s character was not affected by the offences or the experience of conviction, and credit is available for living a law abiding life. King CJ did consider the later offences relevant as showing the offender had not continued to so live his life, suggesting a greater need for specific deterrence. In the facts of the present case, the later offending shows a need for greater deterrence, but recognition need also be given in the case of Mr Peters to the now 5 years of non-offending, which supports the opposite conclusion. Ultimately, I do take the absence of a record at the time into account, but indicate that taking that into account with all other matters results in less leniency than would otherwise have been exercised.

58. The ultimate submission made on behalf of Mr Peters is for an Intensive Correction Order. Failing that it is submitted that special circumstances should be found in determining the non-parole period. I have considered section 3A of the Crimes (Sentencing Procedure) Act and have made reference to matters it identifies in the above reasoning. Section 5 of that act requires a sentence of imprisonment only if no other sentence is appropriate. I accept the submission in general terms that the ICO regime is a recognition of community safety not just being about incarceration. My strong view however is that the brazen manner of Mr Peters reflecting a lack of remorse and indeed insight into his wrongdoing coupled with the seriousness of the offences inexorably leads to the result of a full-time custodial sentence. In coming to this conclusion I have taken into account all of the matters discussed above.

59. I propose to proceed by way of an aggregate sentence so that it is first necessary to state the indicative sentences. In respect of what I might call the minor charges of counts 1, 3, 4 and 15 the indicative sentence is one month for each offence giving a total of four months. In connection with counts 2, 7, 8 and 9, I note that there is a maximum sentence of five years in respect of each count. I note also that three of those counts occurred on the same day and could be viewed as one transaction with count 2 occurring two years prior to that. The indicative sentence for count 2 is 12 months imprisonment. In respect of each of counts 7 and 8, will be an 18 month term of imprisonment so a total of 3 years, and for count 9 a term of 2 years. The total of the sentences is 76 months, or 6 years and 4 months. Pursuant to section 53A of the CSPA I propose an aggregate sentence of 4 years. I have imposed this aggregate sentence based on all the matters considered above, including the purposes of sentencing referred to therein in accordance with s3A of the CSPA, and in accordance with the principles of totality and proportionality.

60. I accept the submission that there should be a finding of special circumstances. Mr Peters has not been incarcerated before and is now 55 years of age. The statutory ratio would see Mr Peters had a non-parole period of three years. The fact of his first-time incarceration and his age. I am also of the view that whilst the lack of remorse and likelihood of reoffending result is less leniency overall, for the same reasons a lengthier period of supervision is appropriate. The finding of special circumstances also reflects concern that his issues of depression and anxiety. For these reasons there will be a non-parole period of 2 years.

ORDERS:

62. Mark Arthur Peters in respect of counts 1, 2, 3, 4, 7, 8, 9, and 15 you have been found guilty by a jury of your peers and you are convicted.

63. I sentence you to an aggregate term of imprisonment of 4 years commencing 1 November 2019 and expiring on 31 October 2023. I note I have set out the indicative sentences for each of the eight charges above.

64. I set a non-parole period of two years commencing 1 November 2019 and expiring on 31 October 2021. As required by section 44 (2B) CSPA I note the reasoning for varying the statutory ratio has been set out above.

65. The earliest date for release is 31 October 2021.

Mr Oberg: the subjective case

66. I have been referred to the judgment of Judge Woodburne SC, dealing with other criminality of a similar nature carried out by Mr Oberg. I have been asked to consider the conduct now under consideration together with that other conduct. I have also been asked to adopt the personal history and circumstances of Mr Oberg as it is set out by her Honour.

67. The following matters are extracted from the reasons on sentence of Judge Woodburn SC given on Friday, 24 November 2017. The sentence was being imposed in respect of 24 offences to which Mr Oberg had pleaded not guilty and in respect of which on each count the jury returned a verdict of guilty. Eight of those charges were under the same section for which he is now before the Court. 12 of the offences were brought under section 192B(1) (b) which as noted above in relation to Mr Peters is the successor to section 178BA. There were also four charges under section 178A which involved fraudulent misappropriation of four cheques. A distinction between the facts of that case and the facts of the present case is that the victims of the illegal conduct were the clients of Mr Oberg who was an accountant registered tax agent and financial advisor. Shortly stated the offences were committed over a period of four years and reflect conduct of Mr Oberg defrauding six of his clients of more than $2.3 million. It was submitted in the present case that all of the offending by Mr Oberg for which he has already been sentenced occurred within the timeframe of May 2007 to June 2009 which is the period of the present offences, however this was later corrected as the offending for which Mr Oberg has already been sentenced extended in time to 2012. In terms of the present offending there was in fact only five dates of offending as counts 7, 8, and 9 occurred on one day and counts five and six occurred on the same day then counts 11 and 12 on a second day three months later and then counts 13 and 14 approximately one week after that. I am not at all persuaded by the fact that fraudulent conduct resulting in a financial advantage of some $6.8 million (being the total of the offending already sentenced and of the offending now being considered, though for reasons stated above, the total could be considered to be $5.23M) is somehow mitigated by reason of the fact that it happened over an approximate two year period, and the submission really falls away altogether when it is realised the period is some 5 years. I accept the need to consider totality in respect of the actual offending but the time period in which it occurred does not help the offender. Rather it shows a considered and prolonged period of illegal behaviour.

68. Returning to the earlier reasons on sentence for Mr Oberg, the subjective features are set out commencing at the bottom of page 10. He was born in October 1952 and his offending commenced in 2008 and ended in 2012 so that as just noted the period of offending is somewhat enlarged beyond the two years of the present offences. He had no prior criminal history. Judge Woodburne SC considered the fact that at the time of these offences he had no criminal record does not mean that he is entitled to the leniency that may otherwise be granted him given that the inferred good character can be demonstrated not to be so by the offending we now know he was engaged in throughout this period. I agree with this approach and in this regard note the brief discussion above on this point and the reasoning of King CJ in McInerney. Accordingly whilst Mr Oberg gains some leniency for leading a crime free life until 2007 it will not be as significant as some other offender who commits a one-off offence in an otherwise blameless life.

69. Returning again to the earlier reasons on sentence we learn that Mr Oberg was born and raised in Sydney and his father is now 92 and his mother passed away in 2012 and he is the eldest of four children. Mr Oberg is single with no children. He attended Sydney Grammar School and gained an accounting qualification but then pursued a career seemingly very successfully in teaching the sport of fencing. He commenced practising as an accountant in 1988 and in 1989 was practising as a sole practitioner. He later bought a practice and in 2006 moved his firm to Miranda until he became bankrupt and sold his assets in March 2012. After that time he practised on a contract basis and on 31 December 2013 had a severe stroke which made him medically unfit to continue work.

70. Mr Oberg’s medical conditions include suffering from diabetes, kidney disease though with the nephrotic syndrome now in remission; cerebrovascular disease being a reference to his December 2013 stroke which has left him with some residual disability; a gastric ulcer; hypertension; osteoporosis; some deafness; he had suffered glaucoma; short-term memory difficulties due to the stroke. At the time of being taken into custody he was on a disability support pension and being cared for by his longtime friend Rhonda Sweetman. From January 2015 he resided with her in her home on the Sunshine Coast in Queensland.

71. A psychiatric report reported no major mental illness or mental condition. A Dr Eagle gave the opinion that the custodial sentence would have an adverse effect on Mr Oberg’s physical health.

72. Her honour concluded there was nothing in the offender’s personal circumstances which operated to reduce his moral culpability for his offending. I concur. I also concur it is appropriate to take this medical condition into account but, like her Honour, I do not consider this to have a marked impact on sentence, though I consider it relevant to the question of special circumstances.

73. Judge Woodburne SC recorded at page 15 that Mr Oberg maintains his innocence’ that is as at the time sentence. Mr Oberg also maintained his innocence in this matter and I am not aware of any material which suggests an altered position and there is nothing in the report that he relies on of Dr Dayalan, a psychiatrist to suggest that has now occurred. The approach of her Honour will be adopted here, that is Mr Oberg may maintain his innocence as is his right but it deprives him of the benefit of showing any acceptance of responsibility or remorse for his offending. This approach together with the investment scheme story that was propounded through his record of interview, which has been touched on above, result in similar conclusions as to remorse, likelihood of reoffending, and likelihood of rehabilitation as I have found in respect of Mr Peters. Mr Oberg has exhibited a high level of dishonesty and in my view he simply cannot be trusted with another person’s money or, in this case, cannot be trusted not to fraudulently obtain money that is not his, or a financial benefit to which he is not entitled.

74. In the written submissions relied upon on the half of Mr Oberg it was noted that the maximum sentence for each of the offences was five years imprisonment. Those submissions also helpfully set out the basic facts which are supported by the evidence that the court should find consistent with the jury’s verdict and I note that in the course of these reasons I have identified the particular matters that I so find which when adverse to the offender have been found beyond reasonable doubt. I should make clear that the reliance on the money ending up in the Evanson account is not a fact that I consider of assistance to Mr Oberg. The fact of the matter is Mr Oberg caused the money to be placed there. The opaqueness that perhaps remains as to what then occurred is not something that he can rely upon to his favour.

75. The submission is made in respect of count 2 that some of the money was repaid. This submission is founded on the fact that the opening balance of that account was some $19,000 in the red or in credit to adopt the banking term that is money was owed to the bank, and the closing balance was some $49,000 in the red, a difference therefore of only $30,000. There was an unrecovered transfer from the account of $30,000 to another Oberg account. To say this money has been repaid is a misnomer. What has happened is the fraud was not as successful as it may have been. What appears to have happened is that $50,000 was credited to the account, a cheque for $50,000 was written to pay Mr Potniotis, a misstated name of an alleged creditor of Mr Peters, that cheque was reversed and $30,000 as indicated had been transferred for the benefit of Mr Oberg. I do not see how the failure of the attempted fraud $50,000 to succeed only as to $30,000 assists in terms of moral culpability or could be said to indicate repayment as if there had been some recognition of wrongdoing where clearly there is not. The only benefit perhaps is that ultimately whilst there was the benefit of the credit of $50,000 the amount extracted from the account was only $30,000. I take that fact into account.

76. I have indicated my assessment of the objective seriousness of these offences above. The submission for Mr Oberg which I am considering is that the assessment should be in the lower end of the mid-range. Bearing in mind the maximum sentence is five years and, bearing in mind, we are talking a sum of $4.5 million and bearing also in mind, the extended period over which the offending occurred, that is, that each of these offences is part of an ongoing scheme. I reject that submission and adhere to the assessment outlined above, namely, that for the offences committed by Mr Oberg which for all but count 2 extend into the hundreds of thousands of dollars, with a high point being $1.5 million, any assessment must put this offending into the high range. The essential submission, with respect, on behalf of Mr Oberg, which in theory albeit not in its application is concurred in by the Crown, is that the current offending needs to be sentenced with full awareness of the offending the subject of the sentence of Judge Woodburne SC to ensure that the principle of totality is observed. As noted in the submissions of Mr Pickering for Mr Oberg, the offending for which he has already been sentenced took place over the period 2008 to 2012. In our present case the offending all occurred between 28 May 2007 and 23 June 2009. The period of the offending in totality is therefore the period 2007 through to 2012. The point in favour of Mr Oberg is that it was possible for these offences that I am now considering to be dealt with at the same time as the earlier offences. As noted there is no dispute about this. Indeed there was an indictment including these current matters at the time of the first trial.

77. In sentencing for these matters I have grouped counts 5 and 6, counts 11 and 12 and counts 13 and 14 in a some sense together as three occasions of offending, without losing sight of their individuality, due to the second offence of each such group flowing from the first, and the sentences for the second of the offences of those groups will reflect this.

78. I note in respect of the earlier offending already sentenced for that the total of money involved was less, being some $2.3M, but that, without lessening any obligation to a bank, the earlier offending involved gross breaches of trust to clients of Mr Oberg, and that there were a total of 24 offences.

79. The sentence imposed by Judge Woodburne SC in respect of the 24 counts before her by reference to the indicative sentences was a total 467 months or just shy of 39 years. Her Honour proceeded by way of an aggregate sentence and imposed a term of nine years with a non-parole period of six years and three months dating from 7 July 2017. The statutory ratio was therefore varied so that the balance of term was 44% of the non parole period and not 33%.

80. I also propose to proceed by way of an aggregate sentence and indicate the following indicative sentences:

1. Count 2:   12 months

2. Count 5:   18 months

3. Count 6:   12 months

4. Count 7:   18 months

5. Count 8:   18 months

6. Count 9:   24 months

7. Count 11:   3 years

8. Count 12:   18 months

9. Count 13:   4 years

10. Count 14:   12 months.

81. The total of the indicative sentences is 216 months or 18 years.

82. That cumulative term is reflective of the number of offences and is disproportionate in terms of the offenders overall criminality. Any aggregation of the above counts would necessarily factor in that the offending did occur in three discrete periods; that is counts 5 and 6 same day; counts 7, 8, 9 same day, and counts 11, 12, 13 and 14, within 8 days of each other. At the same time the overall period of offending was a period of years, and it should not be forgotten just what significant amounts of money being dealt with in these counts. Bearing those thoughts in mind together with the objective seriousness considered above and the purposes of sentencing, and the subjective features such as they are and applying the principles of totality and proportionality, I will impose an aggregate sentence of 9 years. That this is the same period as arrived at by Judge Woodburne SC is truly coincidental, and reflects that whilst there is a lesser breach of trust in the present case, and more offences in the earlier case, the amount of money involved in the present matter is, on a favourable view to the offender, more than $1.5M greater.

83. Given Mr Oberg’s state of health I find there are special circumstances. I also find special circumstances as discussed below in order to give proper effect to the earlier sentence of Judge Woodburne SC, and to properly reflect the appropriate sentence for the all of the offending, that is, the offending already sentenced by Judge Woodburne SC, and the offending being sentenced today.

84. I note the allowance for special circumstances by Judge Woodburne SC can be expressed in various ways. Numerically the non parole period is 70% of the overall sentence or, in keeping with the terminology and intent of s44, the balance of sentence is 44% of the non parole period as opposed to the statutory ratio of 33%. The structure of the sentence I will impose will seek to adhere to that proportion in approximate terms.

85. The sentence structure will be:

1. the sentence will commence on 7 July 2021 and expire on 6 July 2030, meaning there will be a total sentence overall for all the offending in effect of 13 years imprisonment.

2. applying the ratio adopted by Judge Woodburne SC to the sentence for the present offences, the non parole period would be the same, 6 years and 3 months, so that would expire on 6 October 2027. The same ratio applied to the proposed overall term of imprisonment of 13 years is approximately 9 years. If that period commenced on 7 July 2017 it would expire on 6 October 2026.

3. On that basis, which is the basis I will adopt, the non parole period for the sentence now being imposed will expire on 6 October 2026, meaning that the non parole period for the sentence imposed today will be 5 years and 3 months, giving an overall non parole period of 9 years and leaving a balance of term of 3 years and 9 months. As a proportion of the non parole period of the sentence imposed by me this is well in excess of the statutory ratio, being more than two thirds as opposed to one third. The reason for this, in addition to the age and health of Mr Oberg, is to affect the structure of the sentence as just outlined.

86. For these reasons I make the following orders:

ORDERS

87. Colin James Oberg in respect of counts 2, 5, 6, 7, 8, 9, 11, 12, 13 and 14 in the indictment, you have been found guilty by a jury of your peers and you are convicted.

88. I sentence you to an aggregate term of imprisonment of 9 years commencing 7 July 2021 and expiring on 6 July 2030. I note I have set out the indicative sentences for each of the eight charges above.

89. I set a non-parole period of 5 years and 3 months commencing 7 July 2021 and expiring on 6 October 2026. As required by section 44(2B) I note the reasoning for varying the statutory ratio has been set out above.

90. The earliest date for release is 6 October 2026.

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Decision last updated: 25 November 2019