Citation: Regina v Suteski [No 6] [2002] NSWSC 457
Court: Supreme Court of New South Wales, Common Law Division
Date: 28 May 2002
Judge(s): Kirby J
Background
The accused was a young accounts payable clerk employed at a car dealership. Over approximately eight months in 1999 and into January 2000, she systematically diverted funds from her employer by manipulating supplier bank account details in the company's computer system and resubmitting already-paid invoices for a second approval. Across 77 separate transactions, she obtained $289,075.56 in fraudulent payments, channelling money to her own account, her brother's account, and her boyfriend's account. Notably, one payment was directed to a man later identified as involved in the death of her supervisor.
That supervisor, Richard Peich, was murdered on 20 December 1999. He was stabbed repeatedly by another man, Walid Irani. The Crown alleged that the accused had procured the assault, and she was tried and convicted of murder by the jury on 21 March 2002. The murder charge arose against the backdrop of the fraud: the accused's supervisor held authorisation power over the payments she was manipulating, and the Crown's case connected the killing to her scheme.
The accused had also previously defrauded a prior employer of over $98,000, though that employer chose not to prosecute after her father repaid the amount. Within a year of that agreement, she began the offending at Newman's. The sentencing judgment dealt with the appropriate sentences across all charges, the principle of totality, and the question of parity given that co-offenders had already been sentenced.
Legal Issues
- What sentence was appropriate for the murder conviction, including the applicable factual basis consistent with the jury verdict?
- How should the nine counts of obtaining a financial benefit by deception be sentenced, having regard to the 68 additional matters on the Form 1?
- Whether sentences across the fraud counts and the murder count should run concurrently or be partially accumulated, and how the totality principle applied.
- Whether parity with sentences already imposed on co-offenders (particularly Irani) was a relevant consideration, and what weight it carried.
- How to treat the 36 days the accused spent in custody before being granted bail.
Decision
Kirby J sentenced the accused on the fraud charges by identifying Count 2 as the principal fraud count, with the 68 Form 1 matters taken into account on that count in accordance with the approach in R v Bavadra. His Honour applied a 10 per cent discount to the fraud sentences to reflect the early guilty plea entered on the first day of trial. The fraud offences were characterised as serious, particularly given the prior history of deception at a different employer and the fact that the father's repayment of that earlier fraud had effectively shielded her from prosecution before she reoffended within a year.
On the murder conviction, Kirby J was required to determine the factual basis for sentence consistently with the jury's verdict. Adverse facts had to be established beyond reasonable doubt, while facts favourable to the accused needed only to be proved on the balance of probabilities, applying R v Storey and Olbrich v The Queen. The murder involved a co-offender who physically carried out the stabbing, and the accused's liability was as the procurer.
On the question of parity, Kirby J acknowledged the difficulty created by the sequencing of proceedings. Irani had already been sentenced and his appeal to the Court of Criminal Appeal had been determined before the accused's sentencing was complete. His Honour expressed regret that the Court of Criminal Appeal had not deferred Irani's appeal until after the accused was sentenced, noting that simultaneous consideration would have allowed a more coherent comparative assessment. Despite that structural difficulty, the court proceeded to sentence the accused on the available materials.
Applying the totality principle from Pearce v The Queen, Kirby J structured the sentences to partially accumulate the fraud terms onto the murder sentence. The overall sentence was 24 years with a non-parole period of 18 years. The 36 days the accused had spent in custody before being bailed were deducted from the end dates of both the non-parole period and the head sentence.
Orders Made
- Count 2 (principal fraud count, including Form 1): 4 years and 6 months imprisonment, commencing 25 February 2002, ending 24 August 2006; non-parole period of 3 years, ending 24 February 2005.
- Counts 3 to 10 (remaining fraud counts): Fixed term of 3 years imprisonment, commencing 25 February 2002, ending 24 February 2005, concurrent.
- Count 1 (murder): 22 years imprisonment less 36 days, commencing 25 February 2004, ending 20 January 2026; non-parole period of 16 years less 36 days, commencing 25 February 2004, ending 20 January 2020.
Key Takeaways
- Where multiple co-offenders are sentenced at different times, parity considerations can be complicated significantly by the sequencing of proceedings, particularly if appellate review of an earlier sentence is completed before the later offender is sentenced.
- Under R v Storey and Olbrich v The Queen, a sentencing court must establish adverse facts beyond reasonable doubt and favourable facts on the balance of probabilities, even after a jury verdict has resolved the question of guilt.
- A guilty plea entered on the first day of trial may attract a discount, but the discount is modest: here, 10 per cent was applied to the fraud sentences under the Crimes (Sentencing Procedure) Act 1999.
- The principle of totality from Pearce v The Queen does not automatically mandate concurrent sentences; partial accumulation is available where offences are sufficiently distinct to warrant it.
- Prior uncharged offending of a similar nature, particularly where prosecution was forgone in exchange for remediation, remains a relevant consideration in assessing the overall criminality of later fraudulent conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 19A (murder), s 178BA (obtaining a financial benefit by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 (guilty plea discount)
Cases:
- R v Storey (1996-1997) 89 A Crim R 519
- Olbrich v The Queen (1999) 199 CLR 270
- R v Bavadra (2000) 115 A Crim R 152
- Cheung v The Queen (2001) 76 ALJR 133
- R v Previtera (1997) 94 A Crim R 76
- R v Irani; R v Sakisi [2001] NSWSC 475
- R v Irani [2002] NSWCCA 153
- R v Baartman (unreported, Dunford J, 18 December 1998)
- Pearce v The Queen (1998) 194 CLR 610