AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 August 2007

R v Stephen Michael Larkin

[2007] NSWDC 305

Fraud & dishonesty
CRIMINAL LAW SENTENCE MANAGER OF A CORPORATION INTENT TO DEFRAUD FALSE ENTRY BREACH OF TRUST

Citation: R v Stephen Michael Larkin [2007] NSWDC 305
Court: District Court of New South Wales
Date: 9 August 2007
Judge(s): Norrish QC DCJ

Background

The offender was a veterinary surgeon turned property developer and hotel owner who, in the late 1990s, became involved in a commercial venture to acquire country liquor licences and apply them to premises in Western Sydney. He was a director of Actwane Pty Limited, a corporation formed for that purpose with a co-investor who was a senior executive of Macquarie Bank.

The charges arose from the offender's conduct in making false entries in Actwane's Expenditure Book Number One. He did so with intent to defraud the corporation, recording fictitious or inflated expenditure amounts ranging from approximately $750 to $5,000 per entry.

Across the twelve counts on the indictment and a further seventeen matters listed on a Form 1 (a document admitting additional offences to be taken into account on sentence), the total amount defrauded from the corporation was approximately $57,300. The offences were brought under section 175 of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment.

  • The appropriate sentence for multiple offences of making false entries with intent to defraud, each carrying a maximum of ten years imprisonment
  • How the principle of totality applies when sentencing an offender across a large number of related charges
  • The weight to be given to the seventeen additional matters on the Form 1 in determining the appropriate sentence for the principal offence
  • The relevance of the offender's personal circumstances, including age, health, and prior bankruptcy, to the sentence
  • The correct sentencing methodology, particularly the requirement to apply instinctive synthesis rather than a mechanistic or arithmetic approach

Decision

His Honour surveyed the applicable High Court authority on sentencing methodology, including the warnings in Markarian v The Queen, Pearce v The Queen, and Wong v The Queen against overly mathematical approaches. The court was required to approach the multiple charges by exercising instinctive or intuitive synthesis, balancing the objective seriousness of each offence against the totality of the offending and the offender's personal circumstances.

On the Form 1 matters, the court followed the Court of Criminal Appeal's guideline judgment, which makes clear that matters taken into account on a Form 1, though having "less salience" than principal charges, are not inconsequential. They can significantly alter the appropriate sentence for the principal offence by contextualising the overall gravity of the criminality. His Honour found that the Form 1 offending did materially increase the appropriate sentence for Count 4.

The court identified breach of trust as a significant aggravating factor. The offender held a position of responsibility within the corporation and exploited that position repeatedly over a period of time. Notwithstanding these factors, the offender's age (67 at the time of sentencing), health, guilty pleas, and other personal circumstances were taken into account as mitigating factors, reflected in a sentence discount of slightly more than ten per cent on several counts.

The resulting sentences were structured across three tiers: good behaviour bonds for the least serious counts, suspended sentences for a middle group of counts, and periodic detention for the most serious counts including Count 4 (the principal offence with Form 1 matters). No term of full-time custody was imposed.

Orders Made

  • Counts 1, 2 and 3: Convicted; good behaviour bond for two years on each count, with conditions including supervision by the NSW Probation and Parole Service, reporting to the city office within seven days, maintaining good behaviour, and notifying any change of residential address.
  • Counts 5, 6, 7 and 8: Convicted; thirteen months imprisonment on each count, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, with release on a good behaviour bond for the term of the sentence under the same supervision conditions.
  • Count 9: Convicted; thirteen months imprisonment by way of periodic detention, commencing 18 August 2007, concurrent with Counts 10, 11 and 12 and with the non-parole period in Count 4.
  • Counts 10, 11 and 12: Convicted; sixteen months imprisonment by way of periodic detention on each count, commencing 18 August 2007 at the Metropolitan Periodic Detention Centre, Parramatta.
  • Count 4 (with Form 1 matters): Convicted; non-parole period of sixteen months by way of periodic detention, commencing 18 August 2007 (expiring 17 December 2008), followed by a balance of sentence of sixteen months (expiring 17 April 2010); released to parole at the conclusion of the non-parole period under supervision of the Probation and Parole Service.

Key Takeaways

  • The District Court confirmed that, when sentencing for multiple related charges, the totality principle requires the court to consider the overall criminality of the offending rather than treat each count in isolation, following Pearce v The Queen.
  • Form 1 matters, while carrying "less salience" than principal charges in the sentencing process, can significantly increase the appropriate sentence for the principal offence by providing context for the full extent of the offending.
  • Applying Markarian v The Queen, the court emphasised that sentencing is not a mathematical exercise; the instinctive synthesis approach requires the judge to weigh all relevant factors and arrive at a sentence that reflects the overall justice of the case.
  • Breach of trust by a corporate director who exploits his position to defraud the corporation is treated as a significant aggravating factor, capable of elevating sentences across multiple counts.
  • A combination of custodial alternatives (good behaviour bonds, suspended sentences, and periodic detention) can be deployed across a set of related charges to reflect the varying seriousness of individual counts while still achieving proportionate overall punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 175
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 66(2)
- Veterinary Practice Act (NSW)

Cases
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 79 ALJR 1048
- Regina v Way [2004] NSWCCA 131
- Wong v The Queen (2001) 207 CLR 584
- R v Allpass (1993) 72 A Crim R 561
- R v Diaz [2004] NSWCCA 251
- Thomson and Houlton [2000] NSWCCA 309 (Form 1 guideline judgment)
- R v Zamagias [2002] NSWCCA 17
- R v JCE (2000) 120 A Crim R 18
- R v Dinsdale (2000) 202 CLR 321