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Court of Criminal Appeal 6 April 2009

Kartono v R

[2009] NSWCCA 88

Fraud & dishonesty
CRIMINAL LAW SENTENCE DISHONESTY OFFENCES AGAINST EMPLOYER RELEVANCE OF MOTIVE INVOLUNTARY RESTITUTION WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Kartono v R [2009] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 6 April 2009
Judge(s): Beazley JA, Blanch J, Howie J

Background

The appellant was convicted of three dishonesty offences arising from her employment as a payroll manager at two separate companies. Using false names and fabricated references to obtain both positions, she diverted large sums of money into accounts belonging to her family members. The total amount misappropriated across the offending exceeded $600,000.

The offences spanned mid-2006 to mid-2007. After the first employer pursued civil recovery proceedings in the Supreme Court, the appellant attempted to obstruct those proceedings by deceiving process servers and falsely attributing the conduct to a half-sister who, investigations revealed, did not exist in any meaningful sense. She also used a cheque stolen from her second employer in a further attempt to satisfy a court-ordered debt.

The District Court sentenced her to a total term of imprisonment comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months. The appellant sought leave to appeal to the Court of Criminal Appeal, contending the sentences were manifestly excessive on several grounds.

  • Whether the motive of supporting the family's financial difficulties provided meaningful mitigation for planned dishonesty offences committed against an employer
  • Whether partial accumulation of sentences for the separate offences was appropriate
  • Whether the non-parole period was excessive given the finding of special circumstances
  • Whether restitution of funds, achieved through Supreme Court proceedings rather than voluntarily, warranted greater mitigation
  • Whether the total sentences were manifestly excessive having regard to the maximum penalties and the applicant's personal circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal in a judgment delivered by Howie J, with Beazley JA and Blanch J agreeing. The Court found no error in the approach taken by Ashford DCJ at first instance.

On the question of motive, the Court held that the family's financial difficulties provided little mitigation. The family had committed to building a $1.5 million investment property while their existing home was valued at $385,000. The Court characterised this as the family having "bitten off more than they could chew," and observed that the motive for dishonesty offences against employers is rarely mitigating in any meaningful way. The planned nature of the offending and the absence of genuine remorse further diminished the weight of personal circumstances, including the absence of prior convictions.

Partial accumulation of the sentences was upheld as necessary to reflect the full extent of the appellant's criminality. Each offence represented a separate and distinct act of fraud, committed in breach of positions of trust that had themselves been obtained by deception. The Court accepted that a concurrent sentence would not have adequately captured the totality of the offending.

The Court rejected the argument that restitution warranted greater mitigation. The recovery of funds had been compelled by Supreme Court proceedings initiated by the employer, not by any voluntary act on the appellant's part. Ashford DCJ had taken this factor into account but, in light of its involuntary nature and the fact that a considerable sum remained outstanding, it carried limited weight.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A financial motive, such as meeting a family's self-imposed debt obligations, carries little mitigatory weight in sentencing for planned dishonesty offences against employers.
  • Involuntary restitution, meaning recovery of funds achieved through court-ordered processes rather than by a defendant's own initiative, provides only minimal mitigation at sentence.
  • Where offences are separate and distinct acts of criminality, even if driven by the same underlying purpose, partial accumulation of sentences may be necessary to reflect total criminality.
  • The Court of Criminal Appeal confirmed that a non-parole period set at 71 per cent of the total sentence (reduced from the statutory 75 per cent ratio) was consistent with a finding of special circumstances, and that the period adequately addressed both general and specific deterrence.
  • An absence of prior convictions receives reduced weight where offending is premeditated and the offender demonstrates a persistent lack of remorse throughout the criminal process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300 (using a false instrument, maximum 10 years imprisonment)
- Crimes Act 1900 (NSW), s 178BA (obtaining a benefit by deception, maximum 5 years imprisonment)

Cases: No specific cases were cited in the portions of the judgment available.