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District Court 27 September 2013

R v Cornell

[2013] NSWDC 246

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE AFTER TRIAL DISHONESTLY DAMAGE PROPERTY HARDSHIP TO A THIRD PERSON

Citation: R v Cornell [2013] NSWDC 246
Court: District Court of New South Wales
Date: 27 September 2013
Judge(s): Berman SC DCJ

Background

The offender was convicted after trial of dishonestly damaging property, carrying a maximum penalty of seven years imprisonment. The offence involved arranging for her own motor vehicle to be damaged so that she could make a claim on her insurer and receive the agreed insured value of approximately $26,000. The car was scratched extensively, a headlight was smashed, and the windscreen was later destroyed, causing the insurer to write it off.

The Crown case rested substantially on intercepted telephone calls captured during a separate police investigation. The jury accepted the Crown's case that the offender had recruited her son-in-law to damage the vehicle, rejecting the defence argument that he had acted out of anger toward her.

At sentencing, the court had to determine the appropriate penalty having regard to the seriousness of the offence, the offender's personal circumstances, parity with a co-offender, and the exceptional situation of a seriously ill and dependent daughter.

  • What sentence was appropriate for a first-time offender convicted of dishonestly damaging property for the purpose of making a fraudulent insurance claim?
  • Whether the hardship of a seriously ill and dependent third party could justify departure from full-time imprisonment, noting the offender knowingly assumed that risk at the time of the offence.
  • Whether parity with the co-offender's sentence in the Local Court was a relevant consideration.
  • Whether the matter should be treated as if it could have been dealt with summarily in the Local Court.

Decision

Berman SC DCJ held that the offence, while not large in scale, was seriously dishonest and warranted imprisonment. General deterrence carries significant weight for offences of this kind because they are inherently difficult to detect. The court found that neither a bond under section 9 nor a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act would adequately reflect the objective seriousness of the conduct or the need for punishment.

The central and decisive sentencing consideration was the condition of the offender's daughter, Saara, who suffers from sickle cell disease, has experienced a stroke resulting in frontal lobe injury, and now has seizures that may be fatal. Medical evidence confirmed that optimal management of the disease is critical. The court found the consequences to Saara if her mother were imprisoned full-time were exceptional, and this was the single factor that displaced what would otherwise have been an immediate custodial sentence.

The court nevertheless expressed a clear reservation about the basis for that mitigation. It observed that there is something distasteful about an offender relying on a family member's hardship when the offender knowingly took the risk of that harm by committing the offence in the first place. Despite that reservation, the court accepted that Saara's position warranted significant weight.

The court imposed a two-year term of imprisonment and indicated it was appropriate, subject to a suitability assessment, for the sentence to be served by way of an intensive corrections order. Bail was granted pending that assessment. The court also noted the co-offender's lesser sentence and found the offender would not have a justifiable sense of grievance given she was the moving party who recruited others into the scheme.

Orders Made

  • Compensation to be paid by the offender to Allianz Insurance Limited.
  • Bail granted until 19 December 2013 pending suitability assessment for an intensive corrections order.
  • Two-year term of imprisonment imposed (mode of service to be determined following assessment).

Key Takeaways

  • The District Court confirmed that insurance fraud by way of deliberately arranged property damage attracts full-time imprisonment as the starting point, with general deterrence given particular prominence because such offences are inherently difficult to detect.
  • Exceptional hardship to a dependent third party can displace an otherwise inevitable immediate custodial sentence, but the court must be satisfied the consequences are genuinely exceptional, not merely significant.
  • Where an offender knowingly exposed a vulnerable dependent to risk by committing the offence, reliance on that dependent's hardship as mitigation carries a "distasteful" quality the sentencing court is entitled to note, even while still giving it weight.
  • Parity with a co-offender sentenced in the Local Court remained a relevant consideration, though differences in the charge and the offender's greater role in the scheme explained the disparity in outcome.
  • Loss of a professional career in a regulated industry as a consequence of a dishonesty conviction forms part of the punishment that a sentencing court may take into account, even where that consequence is unsurprising.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12

Cases:
No cases were cited in the judgment.