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Court of Criminal Appeal 10 September 2001

R v Farlow

[2001] NSWCCA 348

Fraud & dishonesty
SENTENCE DISHONESTLY OBTAIN MONEY BY DECEPTION APPEAL AGAINST SEVERITY

Citation: Farlow v R [2001] NSWCCA 348
Court: Court of Criminal Appeal, New South Wales
Date: 10 September 2001
Judge(s): Sully J; Carruthers AJ

Background

The appellant was a clerical assistant at Charles Sturt University's Bathurst campus, where she held sole control over payments for the Building and Grounds department. Over approximately nine years, she created a fictitious company called ELF Services, fabricated purchase orders and invoices, forged supervisors' signatures, and directed university cheques into a bank account she controlled, ultimately defrauding the university of approximately $480,970.

She pleaded guilty in the Bathurst Local Court to 12 counts of dishonestly obtaining money by deception under section 178BA(1) of the Crimes Act 1900, with a further 13 counts taken into account on a Form 1. The maximum penalty for each offence was five years' imprisonment.

The District Court sentenced her to four years' imprisonment on each count, to be served concurrently, with a non-parole period of two years and six months. She sought leave to appeal, arguing the sentences were manifestly excessive and that insufficient weight was given to her subjective circumstances and early guilty plea.

  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including her personal background and psychiatric and pre-sentence reports, particularly where she elected not to give evidence at the sentencing hearing
  • Whether the sentencing judge failed to give proper credit for the early guilty pleas, given no specific quantum of discount was stated in the remarks on sentence
  • Whether the resulting sentences were manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Carruthers AJ, with Sully J agreeing, concluded that the sentencing judge had demonstrably engaged with the subjective circumstances as they appeared from the documentation tendered, including the pre-sentence report and the psychiatric report from Dr Hugh Jolly. The Court rejected the contention that insufficient weight had been given to those matters.

On the guilty plea ground, the Court accepted that even without an express statement of a specific discount, the resulting sentences, assessed against both the objective and subjective circumstances, were consistent with full credit having been given for the early pleas. The absence of explicit quantification was not, of itself, a sentencing error.

The Court characterised the objective criminality as highly serious. The offending involved a prolonged abuse of a position of trust, spanning nearly a decade, with systematic forgery and a substantial financial loss to a public institution. The Crown's submission that the sentence was in fact lenient was noted, and the Court found it impossible to conclude the sentences were manifestly excessive. The existence of a young daughter in the appellant's care and the difficult personal background documented in the reports were acknowledged as matters of sympathy, but they did not displace the weight of the objective circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a sentencing judge does not state a specific quantum of discount for a guilty plea, the Court of Criminal Appeal may nonetheless infer from the overall sentence that proper credit was given, provided the sentence is consistent with that inference when assessed against all the circumstances.
  • A defendant who elects not to give evidence at a sentencing hearing limits the subjective case available to the court to the documentary record alone; the sentencing judge is entitled to work from that material without drawing adverse inferences, but the material available may simply carry less weight than oral testimony would.
  • In dismissing the appeal, the Court confirmed that a prolonged, systematic abuse of a position of trust in a workplace setting carries a strong deterrent element in sentencing, capable of outweighing significant subjective mitigating factors.
  • No error was established in the sentencing judge's treatment of the personal and psychiatric evidence, where the remarks on sentence demonstrated the judge had turned his mind to those matters.
  • Forging supervisors' signatures as part of a fraud scheme was identified as a specific aggravating feature layered on top of the core offending conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178BA(1)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Tripodina [2001] NSWCCA 136