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9
Court of Criminal Appeal 18 April 2001

R v Hawker

[2001] NSWCCA 148

Fraud & dishonesty
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE OBTAINING MONEY BY DECEPTION SENTENCE OUTSIDE PROPER RANGE USE OF SENTENCING STATISTICS

Citation: R v Hawker [2001] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 18 April 2001
Judges: Wood CJ at CL; Sully J

Background

The appellant was a former Commonwealth Bank employee who, together with a co-accused, exploited a flaw in the bank's staff housing loan system over more than three years. The co-accused, who remained employed by the bank, entered false repayment records to place the appellant's loan account in credit. The appellant then withdrew those funds into his personal account, ultimately receiving approximately $560,000, which he spent on gambling.

The appellant pleaded guilty to nine counts of obtaining money by deception under s 178BA of the Crimes Act 1900, with a further 35 matters taken into account on sentence. The District Court sentenced him to a total of six years' imprisonment with a non-parole period of three and a half years, arrived at after a 25% discount for his guilty plea applied to a starting point of eight years.

The appellant sought leave to appeal on the ground that the total sentencing order fell outside the proper range for offences of this kind, arguing that a head sentence of four to five years with a non-parole period of two to two and a half years was more appropriate.

  • Whether the total sentence of six years with a three-and-a-half-year non-parole period fell outside the permissible range for offences of obtaining money by deception.
  • Whether sentencing statistics and prior appeal decisions established a range that the sentencing judge had exceeded.
  • What role general deterrence plays in sentencing for white-collar dishonesty offences of this character.

Decision

The Court of Criminal Appeal dismissed the appeal, finding the sentences were entirely within the permissible range. Wood CJ at CL agreed with the sentencing judge's description of the applicant's criminality as "considerable" and deserving of "appropriately salutary punishment," endorsing both the reasoning and the outcome.

On the use of sentencing statistics and prior decisions, the Court cautioned against attempting to extract a precise "range" from a limited body of appeal decisions or bare statistical data. The Court held that greater assistance comes from general sentencing policy, which has seen a hardening of attitudes toward white-collar crime.

The Court affirmed the established principle that, absent very special circumstances, seriously dishonest conduct carried out with no regard to the propriety of transactions or their consequences will ordinarily require a significant element of general deterrence. Aggravating features in this case included the substantial sums involved (approximately $560,000), the deliberate and systematic nature of the deception, and the fact that it continued over more than three years.

The Court also rejected the submission that the appellant bore lesser culpability because he was not himself employed in the section of the bank that processed the fraudulent entries. While the co-accused's role in manipulating bank records was more direct, the appellant knowingly participated in and continued to benefit from the scheme even after leaving the bank.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Sentencing statistics and a limited group of appeal decisions provide limited guidance when determining the appropriate range for dishonesty offences; general sentencing policy and principle are a more reliable foundation.
  • Absent very special circumstances, seriously dishonest white-collar conduct carried out systematically and without regard to consequences will ordinarily attract a significant element of general deterrence.
  • Aggravating factors that bear on the severity of sentence for fraud offences include the total amount of money involved, the duration of the offending, and the deliberate and systematic nature of the deception.
  • In dismissing the appeal, the Court confirmed that a starting point of eight years, reduced by 25% for a guilty plea to produce a six-year head sentence, was within the permissible range for offending involving approximately $560,000 obtained by sustained deception over more than three years.
  • Continued participation in and benefit from a fraud scheme, even after leaving employment, does not reduce an offender's culpability to the point of removing the need for substantial punishment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 178BA (obtaining financial advantage by deception)

Cases:
- R v Corner (John Stewart) (NSW CCA, 19 December 1997, unreported)
- R v Pantano (1990) 49 A Crim R 328
- R v Hawkins (1989) 45 A Crim R 430
- R v Jalaty (NSW CCA, 2 April 1997, unreported)
- R v Tyneth (NSW CCA, 25 November 1994, unreported)
- Glennister (1980) 2 NSWLR 597
- R v McKechnie (NSW CCA, 1 October 1987, unreported)
- Various other unreported NSW CCA decisions listed in the schedule to the judgment