Citation: R v Toller [2018] NSWDC 287
Court: District Court of New South Wales
Date: 20 April 2018
Judge: Judge S Norrish QC
Background
The offender, Edward Charles Toller, pleaded guilty to 14 counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900. Each offence carried a maximum penalty of ten years imprisonment. The offending occurred between 2014 and 2017 and involved 14 separate victims.
Toller operated a company called Palamoun Investments Pty Ltd, which he registered with ASIC in May 2014 as a finance and investment service despite it holding no licence to provide such services. He targeted victims who had already suffered losses through other fraudulent investment schemes, including one called Velvet Assets, where he had previously worked. Knowing his victims were unsophisticated investors desperate to recover earlier losses, he made false representations about investment returns and produced fabricated documents to give the appearance of genuine investment activity.
The total amount defrauded across all 14 victims was $1,744,220, with a net benefit to the offender of approximately $1,568,882. The funds were primarily spent on gambling and living expenses. The offending continued even after Palamoun was deregistered in October 2016, with Toller continuing to receive money on the false premise that funds would be invested.
Legal Issues
- What aggregate sentence was appropriate under s 53A of the Crimes (Sentencing Procedure) Act 1999 for 14 counts of fraud involving substantial planned dishonesty?
- What discount applied to reflect the offender's early pleas of guilty?
- Whether "special circumstances" existed to justify a longer-than-usual balance of term relative to the non-parole period.
- Whether victim impact statements were admissible in proceedings for fraud offences.
- How the totality principle applied when fixing indicative sentences across multiple, sequential counts.
Decision
Judge Norrish imposed a 25% discount on sentences across all counts to reflect the early pleas of guilty. The pleas were entered promptly following committal, and the court took that timing into account in accordance with the principles in Ellis (1996) 6 NSWLR 603 and related authorities.
The court considered the objective seriousness of the offending to be high. The offending was planned and sustained over several years, targeted vulnerable and unsophisticated victims who had already suffered significant financial losses, involved the creation of false documentation, and resulted in total losses exceeding $1.7 million. The offender's use of his prior knowledge of victims' circumstances, gained through working at another fraudulent scheme, was treated as an aggravating feature.
On the question of special circumstances (which permits a court to depart from the standard ratio between the non-parole period and the balance of term), the court found that special circumstances existed. This justified fixing a non-parole period shorter than the statutory default proportion, producing a balance of term sufficient to support the offender's rehabilitation upon release.
Applying the totality principle, as affirmed in R v Van Ryn [2016] NSWCCA 1, the court fixed an aggregate sentence rather than running individual sentences cumulatively in a way that would produce an unjust total. Indicative sentences were assigned to each sequence to satisfy the requirements of s 53A.
Orders Made
- The offender was convicted on all 14 counts.
- An aggregate sentence of eight years imprisonment was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
- Non-parole period: five years, commencing 27 June 2017 and expiring 26 June 2022.
- Balance of sentence: three years, expiring 26 June 2025.
- Indicative sentences ranged from 12 months (sequences 7 to 11) to four years (sequences 2 and 12).
- Compensation orders were made in accordance with the schedule provided by the Crown.
Key Takeaways
- The District Court confirmed that a 25% guilty plea discount is available where pleas are entered promptly and unconditionally following committal, even in complex multi-count fraud matters.
- Where an offender deliberately targets victims already known to be financially vulnerable and unsophisticated, and exploits that vulnerability through sustained deception, the courts treat this as a significant aggravating feature going to objective seriousness.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be found in fraud cases to support a longer balance of term, particularly where the offender's rehabilitation requires structured post-release supervision after a lengthy custodial period.
- Applying the totality principle requires the sentencing court to step back from the arithmetic of individual indicative sentences and assess whether the aggregate term reflects the overall criminality without producing a crushing result.
- Victim impact statements were received in evidence, subject to submissions about admissibility, confirming that such statements can be relevant to the sentencing exercise even in fraud matters involving financial rather than physical harm.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases
- Bain v R [2006] NSWCCA 79
- Blackman & Walters [2001] NSWCCA 121
- Cahyadi v R (2007) 168 A Crim R 41
- Chen [2015] NSWCCA 122
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Ellis (1996) 6 NSWLR 603
- Hammoud (2000) 118 A Crim R 66
- Hartman v R [2011] NSWCCA 261
- Henry (1999) 46 NSWLR 346
- Johnston v R [2017] NSWCCA 53
- Miller v R [2014] NSWCCA 34
- MMK (2006) A Crim R 481
- Moffitt (1990) 20 NSWLR 114
- Pont (2000) 121 A Crim R 302
- Porter v R [2008] NSWCCA 145
- R v Berg [2004] NSWCCA 300
- R v De Simoni (1981) 147 CLR 383
- R v Engert (1995) 84 A Crim R 67
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1