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Local Court 18 November 2014

NSW Police Force v Michael James Walsh

[2014] NSWLC 21

Fraud & dishonesty
SENTENCING MULTIPLE FRAUD OFFENCES ACCUMULATION OF SENTENCES

Citation: NSW Police Force v Michael James Walsh [2014] NSWLC 21
Court: Local Court of New South Wales
Date: 18 November 2014
Judge(s): Dare SC LCM

Background

The offender, a single man residing in Young, New South Wales, pleaded guilty to 16 counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW). The total amount actually obtained across the offences was $15,550, with two of the counts being attempts where no money was ultimately retained.

The offending followed a consistent pattern. The offender obtained pre-paid SIM cards registered in fictitious names, searched the internet for small businesses in regional Australian towns, then called those businesses posing as someone liquidating a relative's electrical goods stock. Victims agreed to pay deposits into one of his 14 bank accounts for discounted electronics that were never delivered. He withdrew the funds at nearby ATMs almost immediately after each deposit was made and then discarded the SIM card.

The offences were committed between June 2011 and August 2013. The offender had a lengthy prior history of similar offending, which was a significant factor in the sentencing exercise. He received a disability pension and was said to have a significant gambling addiction.

  • What sentence was appropriate for 16 counts of fraud given the offender's lengthy history of similar prior offending?
  • How should the prior criminal record be weighed in assessing the objective seriousness of the offending and the relevant sentencing purposes?
  • What discount, if any, applied to reflect the guilty pleas?
  • How should multiple sentences be structured and accumulated, having regard to the totality principle and the statutory cap on consecutive sentences under s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Were there special circumstances justifying a reduction in the standard ratio of non-parole period to head sentence?

Decision

The magistrate sentenced the offender by grouping the 16 sequences into three tranches, with sentences structured to run consecutively. Sequences 1 to 5 attracted fixed terms of two months commencing 18 November 2014. Sequences 6 to 10 attracted further fixed terms of two months commencing 18 December 2014. The sentences for these two groups were expressed as fixed terms because they were designed to be subsumed into the longer final sentence.

For Sequences 11 to 16, the magistrate applied an original term of 18 months, discounted by 25 percent for the guilty pleas, yielding a sentence of 13 months with a non-parole period of 3 months. That sentence commenced on 18 February 2015. The total effective non-parole period was 6 months from 18 November 2014, with a parole period of 10 months to follow.

The magistrate identified a number of factors relevant to all fraud offending of this kind, including the preparatory planning involved, the repeated exploitation of trust placed in unknown callers, the targeting of small regional businesses, and the difficulty of detection due to the use of fictitious identities and pre-paid SIM cards. The prior record was treated as relevant both to the assessment of moral culpability and to the weight given to general and specific deterrence.

Special circumstances were found to exist, justifying a reduction in the standard statutory proportion between non-parole period and head sentence. The reasons included the need for rehabilitation, the requirement for extended supervision upon release, an unresolved health question that may have rendered imprisonment more burdensome on this offender than for the average prisoner, and the accumulation of the individual sentences.

Orders Made

  • Sequences 1 to 5: convicted and sentenced to fixed terms of 2 months imprisonment, commencing 18 November 2014 and expiring 17 January 2015.
  • Sequences 6 to 10: convicted and sentenced to fixed terms of 2 months imprisonment, commencing 18 December 2014 and expiring 17 February 2015.
  • Sequences 11 to 16: convicted and sentenced to 13 months imprisonment (after a 25% guilty plea discount applied to an original 18-month term), with a non-parole period of 3 months commencing 18 February 2015 and expiring 17 May 2015, with a balance term of 10 months expiring 17 March 2016.
  • Total effective non-parole period: 6 months from 18 November 2014.
  • Release to parole directed at the end of the non-parole period, subject to supervision by the Probation and Parole Service for such period as that Service deems necessary, with a requirement to undertake any recommended program or treatment.

Key Takeaways

  • A lengthy prior history of similar offending was treated as a significant aggravating factor, weighing against leniency and increasing the emphasis placed on general and specific deterrence in the sentencing calculus.
  • Fraud offences of this type attracted consistent aggravating features recognised in the case law: methodical planning, exploitation of trust, deliberate concealment through fictitious identities, and the difficulty of detection, all of which elevated the objective seriousness of the conduct.
  • Under s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), consecutive sentences in the Local Court are capped at a total of 5 years, a constraint the magistrate addressed by structuring individual sentences as fixed terms to be subsumed within the accumulation.
  • A 25 percent discount was applied for guilty pleas entered in the Local Court, consistent with the approach endorsed in the relevant Court of Criminal Appeal authorities.
  • Special circumstances justifying a departure from the standard non-parole period proportion can arise from a combination of factors, including the need for rehabilitation, extended post-release supervision, the potential for imprisonment to be particularly burdensome due to health issues, and the overall structure of accumulated sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 22, 25(2), 50, 51, 58
- Criminal Procedure Act 1986 (NSW), s 267(2)

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Houlten [2000] NSWCCA 309; 49 NSWLR 383
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Aslett v R [2006] NSWCCA 360
- Assi v R [2006] NSWCCA 257
- Le v R [2006] NSWCCA 136
- Nguyen v R [2007] NSWCCA 14
- R v Mmk [2006] NSWCCA 272
- R v Huynh [2008] NSWCCA 16
- R v Hill [2004] NSWCCA 257
- R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376
- R v Hawkins (1989) 45 A Crim R 430
- R v Mears (1991) 53 A Crim R 141
- R v Falzon and Pullen (NSWCCA, 20 January 1992, unrep)
- R v Mille (NSWCCA, 1 May 1998, unrep)
- R v Molesworth [1999] NSWCCA 43
- R v Murtaza [2001] NSWCCA 336
- Rios v R [2012] NSWCCA 8