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District Court 17 February 2012

R v STEPTO

[2012] NSWDC 56

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE OBTAIN BENEFIT BY DECEPTION CORRUPTLY GIVING A REWARD GIVING KNOWINGLY FALSE EVIDENCE PARITY

Citation: R v Stepto [2012] NSWDC 56
Court: NSW District Court
Date: 17 February 2012
Judge(s): Berman SC DCJ

Background

The offender, a contractor, pleaded guilty to 23 charges arising from a lengthy fraud against what was then the Roads and Traffic Authority (RTA). His co-offender, a close friend employed by the RTA, used his position to approve false invoices and steer work improperly toward the offender's companies. The scheme ran from October 2003 to May 2006 across several distinct categories of conduct.

The fraudulent conduct fell into three broad streams: invoicing the RTA for second-hand "candy bars" (coloured road markers) at new-item prices; arranging payment for RTA-performed work in connection with Railcorp service shutdowns; and invoicing for tidal flow road work that was either never done or not properly the offender's to claim. Corrupt payments were made to the co-offender throughout. The offender also gave knowingly false evidence to the Independent Commission Against Corruption (ICAC) on two occasions in 2006, fabricating a story about a third-party supplier to cover up the scheme.

The co-offender, Damon Job, had already been sentenced, and his sentence had been the subject of a Court of Criminal Appeal decision. Stepto's sentence therefore required consideration of parity between co-offenders, as well as significant sentencing delay.

  • What aggregate sentence was appropriate across 18 counts of obtaining a benefit by deception, 4 counts of corruptly giving a reward, and 1 count of giving knowingly false evidence to ICAC?
  • What discount, if any, was warranted for a late guilty plea?
  • How should delay between detection and sentencing be taken into account?
  • How should the parity principle be applied, given the differences and similarities between this offender and the already-sentenced co-offender?

Decision

Berman SC DCJ noted that the guilty plea was late, entered the day after the matter was listed for trial. The offender attributed this to poor advice from former lawyers and misleading information from his co-offender. The court did not accept that this explanation fully justified the lateness, though it acknowledged the assertions were untested. A discount of 10 per cent was applied for the plea.

On delay, the court accepted that a substantial period had elapsed since ICAC detected the offending in 2006. Various factors contributed, including late plea entry, adjournment applications by the defence, delays in laying charges, and the Court of Criminal Appeal's reserved decision on the co-offender's sentence. The overall delay meant the matter had hung over the offender for a considerable time, and that was taken into account.

The central parity question turned on the relative culpability of the two offenders. The court found that, while this offender faced the additional ICAC perjury charge, his conduct did not itself involve a breach of his own employer's trust. By contrast, Job had exploited his position of trust within the RTA. That distinction was regarded as significant. Accordingly, the court set an overall sentence lower than Job's starting point of seven years, before applying the 10 per cent plea discount.

Using the aggregate sentencing provisions in the Crimes (Sentencing Procedure) Act, the court imposed a head sentence of five years with a non-parole period of three and a half years, noting the non-parole period was the minimum that properly reflected the offender's criminality. Had individual sentences been imposed, the court indicated it would have set two years for each deception count, two and a half years for each corruption count, and two years for the ICAC perjury count.

Orders Made

  • Aggregate sentence of five years imprisonment with a non-parole period of three and a half years
  • Sentence to commence from 24 March 2011
  • Eligible for release to parole on 23 September 2014
  • Order that the offender's fingerprints be taken

Key Takeaways

  • Where co-offenders are being sentenced, the parity principle requires close attention to meaningful differences in culpability. Here, the court found that breaching one's own employer's trust carries greater criminality than participating in a scheme that involves another person's breach of trust, even where the latter offender faces an additional charge.
  • A late guilty plea, entered the day after matters were listed for trial, attracted a discount of only 10 per cent. Unsubstantiated claims about inadequate legal advice on the benefits of an early plea did not increase that discount.
  • Sentencing delay, even where partly attributable to the offender's own conduct, remains a relevant mitigating factor. The court recognised that having proceedings unresolved for an extended period itself constitutes a burden on the offender.
  • The District Court applied aggregate sentencing provisions under the Crimes (Sentencing Procedure) Act, setting a single head sentence and non-parole period across 23 charges rather than cascading individual terms.
  • Repaying a portion of fraudulently obtained funds, even without admitting liability, was treated as a relevant circumstance in the overall assessment of the offence, though it did not eliminate the seriousness of the underlying conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW) (aggregate sentencing provisions)

Cases:
- No specific cases were cited in the text provided. The judgment references a Court of Criminal Appeal decision concerning co-offender Damon Job, which established a starting point of seven years for that offender's sentence, but that decision is not named.