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District Court 24 February 2017

R v Beckett

[2017] NSWDC 155

Fraud & dishonesty
CRIMINAL LAW SENTENCE FORM 1 EXTRA CURIAL PUNISHMENT

Citation: R v Beckett [2017] NSWDC 155
Court: District Court of New South Wales
Date: 24 February 2017
Judge: Berman SC DCJ

Background

The offender was a solicitor approved by the Office of State Revenue to stamp transfers of real property using accountable stamps. Following an outstanding payment on a stamped transfer, her stamping entitlement was suspended and she was notified that an audit would be conducted.

When she produced her file, it contained photocopied bank cheques purportedly dated 26 September 2009, which she claimed showed funds had been available when she stamped a transfer on 11 June 2010. Further investigation revealed those cheques had in fact been purchased in Hobart on 27 September 2010, the day before an investigative interview. The offender had forged the dates on the photocopies and redeposited the originals shortly afterwards.

The intention was to persuade Office of State Revenue officers to accept the documents as genuine, to explain the non-remittance of stamp duty, and to obtain deferred collection of the outstanding amount, thereby influencing officers in the exercise of a public duty. She also made false statements under oath during the interview to support her false account. The case reached sentencing in February 2017 after a protracted legal history, including proceedings in the Court of Criminal Appeal and the High Court.

  • Whether the objective gravity of the offences warranted fulltime imprisonment
  • What discount, if any, applied to the pleas of guilty given the procedural history
  • The weight to be given to general versus specific deterrence
  • Which sentencing options were available given the offender's residence in Tasmania, and which was most appropriate in the circumstances

Decision

The court characterised the offending as a deliberate attempt to cover up an earlier breach by forging documents and lying to investigators. Berman SC DCJ identified three dimensions of the conduct warranting serious treatment: it involved forgery, an attempt to improperly influence the exercise of a public duty, and a significant breach of the trust placed in an approved stamp duty officer.

On deterrence, the court rejected the defence submission that general deterrence carried reduced weight because such offences were rare. The judge held that the manner of categorising the offence did not alter the fundamental principle that courts must make clear they treat seriously any attempt to forge documents, cover up wrongdoing through further offending, or improperly influence a public official.

The court accepted the guilty pleas were entered promptly once the Crown presented a reformulated indictment, and treated them as an early plea. Specific deterrence was assigned little weight, given the offender had no prior convictions, was of otherwise good character, had already lost her legal practice, and was unlikely to be in a position to reoffend.

A significant sentencing difficulty arose from the offender's Tasmanian residence. An intensive correction order (ICO), which the judge observed he would otherwise have imposed, was unavailable because such orders cannot be served interstate. The court was therefore left to choose between fulltime imprisonment and a suspended sentence. While acknowledging the suspended sentence alone felt insufficient to reflect the objective gravity, the judge concluded fulltime custody was not warranted. Two suspended sentences of imprisonment were imposed, to be served by way of good behaviour bonds.

Orders Made

  • Count 1 (taking into account the Form 1 matter of making a false statement on oath): imprisonment for 20 months, suspended under s 12 of the Crimes (Sentencing Procedure) Act, with a good behaviour bond for the term of the sentence.
  • Count 2: imprisonment for 18 months, suspended under s 12 of the Crimes (Sentencing Procedure) Act, with a good behaviour bond for the term of the sentence.

Key Takeaways

  • General deterrence remains a weighty consideration for offences involving forgery, concealment of wrongdoing through further criminal conduct, and improper attempts to influence those performing a public duty, regardless of how rarely such offences arise.
  • A significant breach of trust, here the misuse of an official approval to stamp property transfers, operates as an aggravating feature at sentencing.
  • Where an offender resides interstate, sentencing options such as intensive correction orders are unavailable, which can materially constrain the court's ability to impose a sentence that precisely matches the objective seriousness of the conduct.
  • The District Court confirmed that where a preferred sentencing option is unavailable, the court must select the most appropriate from those that remain, rather than automatically defaulting to the next most severe.
  • Pleas of guilty entered at the first available opportunity after a Crown indictment is reformulated will be treated as early pleas, even if the overall proceedings have been protracted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 254(b)(iii) (using a false document to influence the exercise of a public duty, maximum 10 years imprisonment), 330 (making a false statement on oath, maximum 5 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 12

Cases:
- R v De Simoni (1981) 147 CLR 383