Citation: Police v Barbara Thorley [2011] NSWLC 18
Court: NSW Local Court
Date: 1 April 2011
Judge: Magistrate G Lerve
Background
The offender operated a bookkeeping business and, together with her late husband (a co-offender who died in February 2011), defrauded multiple clients over several months in 2008. Neither held formal accounting qualifications, was a registered tax agent, or was a member of any professional accounting body. Despite this, the pair held themselves out as qualified accountants with specialist taxation expertise.
The offending involved two separate groups of victims. The first group, two business partners in the Ballina area, were induced to part with substantial sums on the pretence that the funds would be invested through a self-managed superannuation fund and placed into an earthworks company with a council contract. Both the company and the contract were entirely fictitious. The second victim, a client for whom the offender prepared tax returns, had his tax refund of nearly $33,000 stolen and was also deceived into paying amounts purportedly to cover tax liabilities.
Originally facing 15 charges, the offender pleaded guilty on 19 January 2010 to eight counts: five of obtaining money by deception under s 178BA of the Crimes Act 1900 and three of larceny under s 117, with the total value of the fraud across all counts exceeding $110,000.
Legal Issues
- What discount, if any, was appropriate for the utilitarian value of the guilty pleas, given the matter had never been listed for hearing?
- How should the objective seriousness of the offending be assessed, particularly the breach of trust involved?
- How should the totality principle apply when sentencing for multiple offences committed against different victims across two distinct episodes of criminal conduct?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term.
Decision
Magistrate Lerve allowed a 25% discount for the guilty pleas, on the basis that while no hearing date had been set and no witnesses had been assembled, the matter had never been prepared to the point of a full committal hearing. The Magistrate noted established authority that pleas of guilty in "white-collar" crime attract considerable leniency, but framed the discount as generous given the stage at which the pleas were entered.
On objective seriousness, the Magistrate treated the breach of trust as a significant aggravating factor. The offender had held herself out as running an accredited accountancy business, exploited the confidence of clients who came to her precisely for financial expertise, and used those relationships to perpetrate sustained and deliberate deception. The fictitious investment scheme and the theft of a client's tax refund were characterised as serious fraudulent conduct.
On totality, the Magistrate applied the principle that where multiple offences are committed against different victims, sentences should generally be at least substantially cumulative rather than entirely concurrent. The court found it appropriate to structure the sentences so that the terms for the two separate groups of victims ran cumulatively, reflecting the distinct criminality involved in each episode. Special circumstances were found to exist, justifying a variation to the standard statutory ratio, given the cumulative effect of the sentences and the offender's need for supervision on parole.
Orders Made
- Offence sequences 5, 6 and 8: Fixed term of 3 months, commencing 22 March 2011 and expiring 21 June 2011 (concurrent with the longer non-parole period for sequence 3).
- Offence sequence 3: Non-parole period of 6 months, commencing 22 March 2011 and expiring 21 September 2011; balance of term of 5 months, commencing 22 September 2011 and expiring 21 February 2012. Supervised parole.
- Offence sequences 13, 14 and 15: Fixed term of 3 months, commencing 22 August 2011 and expiring 21 November 2011.
- Offence sequence 12: Non-parole period of 5 months, commencing 22 August 2011 and expiring 21 January 2012; balance of term of 6 months, commencing 22 January 2012 and expiring 21 July 2012. Supervised parole.
Key Takeaways
- A guilty plea in a white-collar fraud matter can attract a significant utilitarian discount, but the size of that discount reflects the stage of the proceedings and the extent to which the plea actually saved court resources.
- Breach of trust is a substantial aggravating factor in fraud sentencing, particularly where an offender has actively cultivated a false professional persona to gain access to victims' money.
- Where fraud offences are committed against separate and distinct groups of victims, the totality principle does not require purely concurrent sentences; substantially cumulative sentences will generally be appropriate to reflect the full criminality of the conduct.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can arise from the cumulative effect of multiple sentences, not only from the offender's personal circumstances alone.
- The death of a co-offender during proceedings does not, of itself, entitle the surviving offender to any reduction in sentence, nor does delay caused by adjournments sought for personal reasons attract leniency on sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 117 (larceny), 178BA (obtain money by deception)
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Falzon & Pullen (unreported, 20 February 1992, NSWCCA)
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515
- Nguyen v R [2007] NSWCCA 14
- Pantano v R (1990) 49 A Crim R 328
- Pearce v The Queen (1998) 194 CLR 610
- Phelan v R (1993) 66 A Crim R 446
- R v Brown (unreported, 1 August 1994, NSWCCA)
- R v Carroll [2008] NSWCCA 218
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Mungomery (2004) 151 A Crim R 376
- R v Pont (2000) 121 A Crim R 302
- R v Zamagias [2002] NSWCCA 17
- Vaovasa v R [2007] NSWCCA 253