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District Court 2 November 2006

R v Rankin

[2006] NSWDC 183

Fraud & dishonesty
CRIMINAL LAW SENTENCE FRAUD MAKE AND USE FALSE INSTRUMENT COOPERATION DELAY.

Citation: R v Rankin [2006] NSWDC 183
Court: District Court of New South Wales
Date: 2 November 2006
Judge(s): Norrish QC DCJ

Background

The offender, Tanya Rankin, was a legal secretary who had worked for several Brisbane law firms and later for one of the principal architects of a fraudulent mortgage lending scheme. The scheme involved creating false land title documents, forged loan documents, and fraudulent statutory declarations to induce investors to lend money secured against properties they had no legitimate claim over. Twenty loans in total were implicated, with four transactions involving the offender's conduct resulting in approximately $1.3 million being obtained from investors.

Rankin pleaded guilty to thirteen charges on an indictment, comprising eleven counts of aiding and abetting the making of false instruments and two counts of being an accessory before the fact to using false instruments. Two further offences of aiding and abetting the making of false instruments (relating to powers of attorney) were taken into account on a Form 1. The offending occurred between late November 2001 and May 2002.

Several co-accused, including Queensland solicitor Trevor Brown, de-registered solicitor Wayne Sultan, Sydney solicitor Dean Alcorn, and mortgage broker Neville Stumer and his wife, were either previously sentenced or awaited trial. Rankin's trial had been listed to commence on 25 September 2006 but was delayed in part because a co-accused sought an adjournment. Rankin had also been in discussions with authorities regarding cooperation.

  • What sentence was appropriate given the objective seriousness of the fraud offences and Rankin's role as an accessory?
  • What weight should be given to the guilty plea entered after a delay caused partly by co-accused proceedings?
  • What discount, if any, was appropriate for Rankin's cooperation with authorities, including a statement given to police and an undertaking to give evidence when called upon?
  • Whether the sentences should be suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.

Decision

The court assessed Rankin's role as a facilitator rather than an architect of the scheme. Her position as a legal secretary gave her the skills and access that made her participation valuable to the principal offenders, but she was not among those who designed or primarily operated the fraud. The court noted she had been highly regarded professionally and had no prior criminal history, no drug, alcohol, or gambling issues, and had relocated to Western Australia with no suggestion of flight.

On the question of the guilty plea, the court accepted that the delay in entering the plea was attributable in significant part to circumstances surrounding co-accused proceedings rather than any deliberate tactic by Rankin. A discount for the plea was applied accordingly, though reduced from the maximum that would have applied to an earlier plea.

The court applied a 20 percent discount to the sentences in anticipation of Rankin's future cooperation, including her undertaking to make herself available to give evidence. The court made clear that this discount was conditional: if she failed to cooperate as undertaken, the Crown could seek an appeal to the Court of Criminal Appeal, and any successful appeal could result in increased sentences and a term of actual imprisonment.

Taking all factors into account, the court determined that fully suspended sentences were appropriate. The court expressly noted that, had a re-sentencing exercise ever become necessary, it would have been prepared to find special circumstances, though no such finding was given effect at this stage.

Orders Made

  • Counts 7 to 11: Conviction recorded; fifteen months imprisonment on each count; execution suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 for the term of the sentence; offender released on a good behaviour bond for the term of the sentence.
  • Counts 12 and 13: Conviction recorded; eighteen months imprisonment on each count; execution suspended under section 12 for the term of the sentence; offender released on a good behaviour bond for the term of the sentence on the same conditions as Count 1.
  • No supervision by the Probation and Parole Service was ordered.
  • The 20 percent discount for anticipated future cooperation was incorporated into the sentences as imposed.

(Note: Orders for Counts 1 to 6 and Count 4's two-year bond were stated in the remarks but the full text of those orders was not reproduced in the available extract.)

Key Takeaways

  • A 20 percent sentencing discount for anticipated future cooperation is conditional and carries a clear warning: failure to honour an undertaking to give evidence exposes an offender to a Crown appeal and potential re-sentencing, which could result in actual imprisonment.
  • Where delay in entering a guilty plea results from circumstances attributable to co-accused rather than the offender's own tactical decisions, a court may still allow a meaningful (if reduced) guilty plea discount.
  • Fully suspended sentences under section 12 of the Crimes (Sentencing Procedure) Act 1999 remained available even for serious fraud offences involving multiple counts, where the offender's role was accessorial, her personal circumstances were favourable, and she had no prior criminal history.
  • A finding of special circumstances affecting the ratio of non-parole period to head sentence need not be given formal effect where sentences are suspended and no actual custodial term is being served.
  • Participation in a large-scale property fraud scheme through the application of professional skills as a legal secretary was treated as a seriously aggravating feature of the offending, even where the offender was not among the scheme's organisers.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 300(1) and 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Chu (unreported, 16 October 1998, NSWCCA)
- DPP v El Hani [2004] NSWCCA 162
- Regina v A [2004] NSWCCA 292
- Regina v Sukkar [2006] NSWCCA 92
- Regina v Alcorn [2006] NSWCCA 209
- Regina v Thomson and Houlton (2000) 49 NSWLR 383
- Regina v Markarian (2005) 215 ALR 213
- Regina v Todd (1982) NSWLR 517
- Regina v Way [2004] NSWCCA 131
- Regina v Pellow [2004] NSWCCA 434
- Regina v Pearce (1998) 194 CLR 610
- Regina v Croaker [2004] NSWCCA 470
- Regina v Tolley [2004] NSWCCA 165
- Regina v Zamagias [2002] NSWCCA 17
- Regina v JCE (2002) 120 ACR 18