Citation: R v Gould [2019] NSWDC 313
Court: District Court of New South Wales
Date: 31 January 2019
Judge(s): Wilson SC DCJ
Background
The offender, a woman aged 48 at sentencing, pleaded guilty to two counts of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). Both offences involved elderly, retired men living alone on the Central Coast of New South Wales. The offending occurred between March 2014 and June 2015.
In the first count, the offender befriended a 77-year-old man at a local club and, over more than a year, extracted $18,500 from him through a series of fabricated requests, including money for a third party to escape her husband, holiday expenses, an eye operation, and rent. In the second count, a separate victim then aged approximately 93 (since deceased) was deceived into paying $33,400, also through manufactured pretexts. A co-offender was involved in both matters but was not in a position to be sentenced at the same time.
The offender had been on bail since her initial arrest in December 2014, during which time the second offence was committed. The guilty plea was not entered until 13 June 2018, on what was the third occasion the matter was listed for trial, resulting in a modest discount on sentence.
Legal Issues
- What sentence was appropriate for two counts of dishonestly obtaining a financial advantage by deception, having regard to the vulnerability of the victims, the offender's personal circumstances, and the guilty plea?
- What discount, if any, applied to the guilty plea given the late stage at which it was entered?
- Whether special circumstances existed justifying a variation from the standard ratio between the non-parole period and the total term of imprisonment.
- How to structure the sentence, including whether an aggregate sentence was appropriate and how concurrency and accumulation should be balanced.
Decision
Wilson SC DCJ characterised the offending as extremely serious. The court placed particular weight on the vulnerability of the victims, both of whom were elderly, retired men living alone, and on the fact that the offender had deliberately cultivated relationships with them to exploit their trust. The total sum obtained was $51,900, which the court acknowledged was not large in absolute terms for fraud offences, but was substantial for men living on retirement savings.
The court applied only a 5% discount for the guilty plea, reflecting the late timing. The plea was not entered until the third occasion the matter was listed for trial, well after the earliest reasonable opportunity, and negotiations between counsel had only crystallised shortly before the hearing. No psychiatric or other personal circumstances warranted a meaningful reduction in the sentences otherwise indicated.
On the question of special circumstances, the court declined to make a finding in the offender's favour. No basis was identified to depart from the standard ratio between the non-parole period and the total sentence. The court also noted that the offender had reoffended while on bail, which weighed against leniency.
Applying the totality principle, the court imposed an aggregate sentence of five years' imprisonment rather than separate cumulative terms, on the basis that both offences shared a similar nature and overlapped in time. The indicative sentences were two years and ten months for count one and three years and ten months for count two. The aggregate sentence of five years was designed to reflect the total criminality of the conduct without being crushing.
Orders Made
- Offender convicted of both counts under s 192E(1)(b) of the Crimes Act 1900 (NSW).
- Aggregate sentence of five years' imprisonment imposed, commencing 31 January 2019 and expiring 30 January 2024.
- Non-parole period of three years and nine months, commencing 31 January 2019 and expiring 30 October 2022.
Key Takeaways
- The District Court held that offences of deceptive financial exploitation targeting elderly, socially isolated victims warranted a substantial custodial sentence, even where the total amount obtained was comparatively modest for fraud-type offending.
- A guilty plea entered on the third occasion a matter was listed for trial attracted only a 5% discount, reflecting the limited utilitarian value of such a late plea.
- Reoffending on bail is a significant aggravating factor; the court expressly noted that the offender committed the second offence while on bail for the first.
- Where two offences share a similar character and temporal overlap, an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) may appropriately reflect total criminality without producing a crushing result.
- No special circumstances were found, leaving the standard non-parole period ratio intact.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Imbornone v R [2017] NSWCCA 144
- Ingham v R [2011] NSWCCA 88
- Johnston v R [2017] NSWCCA 53
- The Queen v Pham (2015) 256 CLR 550