Citation: R v Robin Anthony Flack; R v Kenneth James Grindrod [2009] NSWDC 94
Court: District Court of New South Wales
Date: 19 May 2009
Judge(s): Knox SC DCJ
Background
Two co-offenders, operating within the bus and coach industry, were found guilty after a jury trial on five counts of obtaining a financial advantage by deception under section 178BA of the Crimes Act 1900. The offences occurred between January and April 2003 and involved false representations made to five separate financial institutions about buses that were purportedly being constructed. The buses never existed.
The scheme worked as follows: the offenders provided fictitious engine numbers, chassis numbers, and vehicle identification numbers to the general manager of a bus construction company, who incorporated those details into invoices forwarded to the financial institutions. Insurance certificates were also arranged on the false premise that the buses existed. The financial institutions advanced hire purchase funds totalling approximately $1.544 million into the bus builder's account, from which the money was then redirected to a company associated with the offenders.
The offenders had prior dealings with the bus construction business, which gave them knowledge of its invoicing and financing systems. One offender received the bulk of the funds through a company of which he was sole director; the other received commissions on each transaction. Approximately $512,787 was repaid, leaving over $1 million outstanding at the time of sentencing.
Legal Issues
- What sentence was appropriate for each offender convicted of five counts of obtaining money by deception under section 178BA of the Crimes Act 1900?
- How should the court treat the offenders as co-offenders in terms of parity of sentence?
- What weight should be given to mitigating factors, including personal circumstances, age, health, and limited prior criminal history?
- How should the court account for the delay between the commission of the offences (2003) and arrest (2007)?
- What findings of fact were appropriate, consistent with the jury verdict, for the purposes of sentencing?
Decision
The District Court accepted the jury's verdicts and made findings of fact consistent with them. The offenders had knowingly provided false vehicle identification details to a legitimate business, which then unknowingly forwarded those details to financial institutions. All five institutions gave evidence that they would not have advanced any funds had they known the vehicles did not exist. The court found that the application of the proceeds to purposes other than bus construction was central to the criminality involved.
Knox SC DCJ sentenced both offenders equally, finding no sufficient basis to differentiate materially between their respective roles and culpability. The court treated the five counts as a course of dealing, with all sentences to be served concurrently. The maximum penalty for each offence was five years imprisonment, and no standard non-parole period applied.
The court considered a range of mitigating matters, including the offenders' personal circumstances, health issues, and the time that had elapsed between the offences and the proceedings. Notwithstanding those matters, the scale of the fraud, the planning involved, the exploitation of existing industry relationships, and the significant financial loss to the victims all warranted a custodial sentence.
Orders Made
Both offenders received identical sentences on each of the five counts, to be served concurrently:
- Each count (Counts 1 to 5): Convicted and sentenced to imprisonment for 2 years and 6 months (30 months), commencing 19 May 2009 and expiring 18 November 2011.
- Non-parole period: 18 months, commencing 19 May 2009 and expiring 18 November 2010.
- All counts to be served concurrently.
Key Takeaways
- The District Court treated five separate deception offences committed over a three-to-four month period as a single course of dealing, imposing concurrent rather than cumulative sentences.
- Where co-offenders have comparable roles and levels of knowledge in a joint fraud scheme, parity principles support equal sentencing outcomes, even where their precise functions differ.
- A conviction under section 178BA of the Crimes Act 1900 for obtaining money by deception does not carry a standard non-parole period, leaving the court with full discretion to set that period within the maximum term.
- Significant delay between the commission of offences and arrest or trial does not automatically reduce the objective seriousness of the conduct, though it may be a relevant mitigating consideration at sentence.
- The fact that financial institutions relied entirely on false documentation, and would not have advanced funds otherwise, was a significant factor in assessing the harm caused and the culpability of the offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Corbett (1991) 52 A Crim R 112
- R v Doherty (1991) NSWCCA
- R v Hawker [2001] NSWCCA 148
- R v Hawkins (1989) 45 A Crim R 430
- Marks v R [2009] NSWCCA 24
- R v Martin [2005] NSWCCA 190
- McDonald v R [1994] FCA 959
- R v Mears (unreported, NSWCCA, 14 March 1991)
- Mitchell v R [2006] NSWCCA 72
- R v Mungomery (2004) 151 A Crim R 376
- R v Pantano (1990) 49 A Crim R 328
- R v Phelan (1993) 66 A Crim R 446
- R v Swadling [2004] NSWCCA 421
- R v Todorovic [2008] NSWCCA 49
- R v Woodman [2001] NSWCCA 310
- R v Wright [2009] NSWCCA 3