Citation: R v KING Anthony [2008] NSWDC 191
Court: District Court of New South Wales
Date: 18 September 2008
Judge(s): Murrell SC DCJ
Background
The offender was a director of the King group of companies, a bus transport business that had operated along the NSW north coast since 1924. In late 2000, while negotiating a financing arrangement with the National Australia Bank (NAB), the offender presented false documentation to support a claim that his company had purchased 183 new Mercedes Benz buses from Daimler Chrysler at a total value of approximately $65.7 million. The buses did not exist.
The false documentation included fabricated invoices prepared by a company employee at the offender's direction, as well as a letter purportedly from Daimler Chrysler, prepared by a Daimler Chrysler employee whom the offender had recruited for that purpose. On the basis of these documents, the NAB advanced $65,785,846.50 in a sale-and-leaseback transaction, believing it was acquiring title to the buses.
This prosecution arose from a separate but related set of fraudulent transactions. The offender had previously been tried and sentenced in February 2007 for a different fraud involving the re-financing of the existing bus fleet, for which he received five years imprisonment with a three-year non-parole period. The present charge was not indicted until June 2007, and proceedings were further delayed by appeal proceedings arising from the earlier trial.
Legal Issues
- What was the appropriate sentence for the offence of dishonestly obtaining a valuable thing by deception, contrary to section 178BA of the Crimes Act 1900, given the offender had already been sentenced for a related matter?
- What discount, if any, should be applied for the utilitarian value of the guilty plea, given the unusual timing and circumstances of that plea?
- How should the sentencing court address the fragmentation of the prosecutions and the significant delay between the offending and the subject proceedings?
- Were there special circumstances justifying a non-parole period that departed from the statutory ratio?
Decision
The court accepted that a 20% discount for the utilitarian value of the guilty plea was appropriate. Although the offender had indicated an intention to plead guilty to a more serious charge (under section 176A, which carries a maximum of ten years) before ultimately pleading to the lesser offence under section 178BA (maximum five years), the circumstances of the plea were unusual. The offender was only arraigned on the subject charge on the same day he entered the plea, which limited the practical utility of that plea to the prosecution and court system.
Murrell SC DCJ identified significant aggravating features, including the scale of the loss to the NAB, the substantial degree of planning involved, and the ongoing deception required to sustain the fraud. The court also noted that prior good character carries reduced weight in fraud matters, observing that it is often precisely a person's standing and reputation that enables large-scale fraud to occur.
General deterrence was treated as a weighty consideration. The court reaffirmed the view expressed at the earlier sentencing that those in the corporate world do respond to significant custodial sentences for white-collar crime, and that deterrence therefore has real practical effect in this context.
The sentencing exercise was complicated by the delay and fragmentation in charging the offender. The court considered that, assessed together, a total sentence of six years with a four-year non-parole period might have been appropriate for both matters combined. Starting from a sentence of three years for the present offence, the court applied the 20% plea discount to arrive at two years and five months imprisonment. Special circumstances were found to exist, based on the need to integrate this sentence with the earlier term, the fact that it was the offender's first time in custody, and his strong prospects of rehabilitation.
Orders Made
- The offender was convicted of dishonestly obtaining a valuable thing by deception, contrary to section 178BA of the Crimes Act 1900.
- Sentenced to two years and five months imprisonment, commencing 8 February 2010 and expiring 7 July 2012.
- Non-parole period of nine months imposed, expiring 7 November 2010.
- Eligible for release to parole on 7 November 2010.
Key Takeaways
- The District Court applied a 20% discount for the utilitarian value of a guilty plea in circumstances where the offender was first arraigned on the day the plea was entered, accepting that the discount reflects the practical utility of the plea rather than simply its timing.
- Where an offender faces successive prosecutions arising from related conduct, the sentencing court is required to consider the total criminality across both matters and calibrate the later sentence accordingly, even where the two charges were prosecuted separately and with significant delay between them.
- Prior good character carries reduced mitigating weight in fraud offences; the court noted that a person's good character and position of trust may itself be a prerequisite to the commission of large-scale financial fraud.
- General deterrence was accorded significant weight in sentencing for white-collar crime, with the court reaffirming that custodial sentences in corporate fraud matters serve a genuine deterrent function for those in the business community.
- Special circumstances justifying a departure from the standard non-parole ratio can be established where the sentence must be integrated with an existing term, the offender has no prior custodial history, and rehabilitation prospects are strong.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 176A, 178A, 178B, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
No cases were cited in the portions of the judgment provided.