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District Court 25 August 2017

R v Hacking

[2017] NSWDC 473

Fraud & dishonestyTheft & property

Citation: R v Hacking [2017] NSWDC 473
Court: District Court of New South Wales
Date: 25 August 2017
Judge(s): M L Williams SC DCJ

Background

The offender was a contracts officer employed by the NSW Rural Fire Service, where he held primary responsibility for procuring snack packs supplied to frontline firefighters. Over three fire seasons, he entered a corrupt arrangement with a catering contractor under which the contractor would systematically under-supply packs by up to 20% and split the resulting profits with the offender. The scheme generated corrupt payments to the offender totalling approximately $228,882 in bank deposits, plus additional cash payments. The total benefit received across all conduct was approximately $400,000.

The offender also stole mobile phones and other electronic items from the RFS, giving some away to friends and family and selling others on eBay, generating a further approximately $50,000 in proceeds. The conduct came to light through an ICAC investigation. When interviewed, the offender attended with his lawyer and made full and admissible recorded confessions, explaining the entire arrangement in detail.

The offender pleaded guilty to multiple counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900 (maximum penalty: seven years' imprisonment) and two counts of larceny by a public servant under s 159 of the same Act (maximum penalty: ten years). Additional matters were placed before the court on a Form 1 to be taken into account on sentence.

  • Whether a term of imprisonment was required, and if so, what that term should be
  • What discount to apply for the early guilty plea and for past and future assistance to law enforcement
  • Whether any additional "Ellis discount" was warranted in the circumstances
  • Whether the sentence should be served in custody or by way of an Intensive Correction Order (ICO)
  • How the totality principle applied across the multiple charges, and the extent of accumulation or concurrency
  • What weight to give to significant mitigating factors, including prior good character, remorse, rehabilitation prospects, health conditions, and full cooperation with authorities

Decision

Guilty plea and assistance discounts. The court accepted the offender was entitled to a 25% discount for the utilitarian value of his early guilty pleas, which was not in dispute. A further 25% discount was allowed for past and future assistance: the court found that the offender's frank recorded interview had provided the prosecution with the essential explanation for the payments, which would otherwise have been very difficult to establish given poor record-keeping at the RFS. The court divided that further discount equally between past and future assistance, with the offender having confirmed in court his undertaking to give evidence at any future proceedings against the contractor.

Ellis discount. The offender's counsel argued for an additional discount beyond the combined 50%, framed loosely as an "Ellis discount" derived from R v Ellis (1986) 6 NSWLR 603. The court rejected that submission, finding no true Ellis discount arose on the facts of this case. The combined 50% discount (25% for plea, 25% for assistance) was treated as the appropriate ceiling.

Mitigating factors and sentencing approach. The court identified a range of mitigating factors: prior good character, low assessed risk of reoffending, genuine remorse, good prospects of rehabilitation, the guilty pleas, and the assistance provided. The court noted that the offender's position of trust in the employment relationship appeared to be an element of the offending rather than an additional aggravating factor, and the Crown advanced no separate aggravating features. All approximately $400,000 had been repaid by cheque to the RFS's solicitors.

Intensive Correction Order. The court accepted an ICO assessment finding the offender suitable for community-based supervision, and imposed an aggregate two-year sentence to be served by way of an ICO. The court expressly acknowledged that an ICO is a sentence of considerable severity involving stringent statutory conditions. Applying the totality principle across the multiple charges, the court imposed indicative sentences for each charge and directed accumulation or concurrency as reflected in those indicative terms.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of imprisonment of 2 years was imposed, commencing 25 August 2017.
  • The sentence was directed to be served by way of an Intensive Correction Order for 2 years, subject to mandatory conditions under the Crimes (Administration of Sentences) Act 2009.
  • Indicative sentences: 18 months for Charges 1, 2, 3, 5, 6, 7, and 10 to 14; 22 months for Charge 4; 6 months for Charge 21; 20 months for Charge 22.
  • Charges 19 and 20 taken into account under s 166 of the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 matters taken into account.
  • The offender was directed to report to the OIC at the Windsor office of CCS by 5pm, Friday 1 September 2017.
  • Consent orders made pursuant to Short Minute of Consent Order dated 25 August 2017.

Key Takeaways

  • A combined discount for guilty plea and assistance should not normally exceed 50%, and this case confirmed that principle was applied as a practical ceiling, with no further "Ellis discount" available in the absence of the specific circumstances that doctrine contemplates.
  • The District Court treated the offender's position of trust as an element of the offending itself, rather than as a standalone aggravating factor attracting additional penalty.
  • Where a co-offender has not yet been prosecuted, a future-assistance component within the overall sentencing discount can be recognised, but carries the consequence that failure to honour the undertaking may require the offender to return for resentencing.
  • Substantial restitution of proceeds, genuine remorse, prior good character, and a low assessed reoffending risk were collectively sufficient, in combination with plea and assistance discounts, to support an ICO rather than full-time custody for serious multi-season corrupt conduct.
  • Applying the totality principle across multiple fraud-related charges requires individual consideration of each count while ensuring the aggregate outcome reflects the overall criminality and the offender's personal circumstances, and does not become a blanket undifferentiated assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 159, 192G(b), 249B, 249C
- Crimes (Administration of Sentences) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 23, 166

Cases:
- EF v The Queen [2015] NSWCCA 20
- Job v The Queen [2011] NSWCCA 267
- R v Beard [1999] NSWCCA 392
- R v Bertoncello (unreported, 5 November 1997)
- R v Brown (unreported, 1 August 1994, NSWCCA)
- R v Ellis (1986) 6 NSWLR 603
- R v McInnes (unreported, 26 July 1994, NSWCCA)
- R v Pont (2000) 121 A Crim R 302
- R v Potter [2000] NSWCCA 26
- R v Roth (unreported, 18 December 2015, NSWDC)
- Robertson v The Queen [2017] NSWCCA 205
- Siwek v The Queen [2017] NSWCCA 178