Citation: R v Egar [2019] NSWDC 445
Court: District Court of New South Wales
Date: 29 August 2019
Judge: Mahony SC DCJ
Background
The offender, born in May 1974, was employed as a practice manager and later financial controller for two separate employers across two distinct periods. Her first employer was a medical practitioner for whom she worked from 2010, with the relevant offending occurring between October 2013 and October 2015. Her second employer was a publishing company, where she moved into the financial controller role in September 2016 and offended between December 2016 and September 2017.
In both roles, the offender exploited her trusted position over accounting systems and payment processes to divert funds to her own accounts. Against her first employer, she created 71 falsified invoices totalling $146,261.16, disguising payments to herself as legitimate supplier transactions within the practice's accounting software. Against her second employer, she made fraudulent transactions totalling $124,871.80, directing funds to personal accounts including payments for a private school, veterinary services, and a car finance account.
The offender had a prior 2006 conviction for obtaining a financial advantage by deception, for which she performed community service and repaid over $16,000. She was also on a conditional liberty order at the time the offences were committed, having been convicted of a mid-range drink-driving offence in August 2015.
Legal Issues
- Whether a full-time custodial sentence, rather than an Intensive Corrections Order (ICO), was warranted given the offender's mental health condition (Borderline Personality Disorder) and risk of self-harm
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio between the non-parole period and the balance of term
- How to structure an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 across two separate offences involving different victims and different periods of offending
Decision
His Honour considered the objective seriousness of both offences to be significant. The offender had occupied positions of trust with both employers and exploited sophisticated accounting mechanisms over sustained periods to conceal her conduct. The combined loss across both victims exceeded $270,000, and the offending was deliberate, premeditated, and repeated. The prior conviction for a similar offence weighed against the offender, as did the fact that she was on conditional liberty when the offences were committed.
On the question of an ICO versus full-time custody, the court rejected the ICO option. Mahony SC DCJ applied the reasoning in R v Fangaloka [2019] NSWCCA 173 that an ICO is not to be regarded as the default or preferred option, and that general deterrence remained a mandatory consideration under s 3A of the Crimes (Sentencing Procedure) Act 1999. The court accepted that the offender's mental health difficulties could cause her hardship in custody but concluded that Justice Health could provide appropriate treatment, and that the seriousness of the offending and the importance of general deterrence outweighed those personal circumstances.
The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, pointing to the offender's Borderline Personality Disorder, risk of self-harm, and need for rehabilitative treatment for both her mental health condition and substance use issues. This justified extending the balance of term and reducing the non-parole period below the statutory ratio. The indicative sentence for each count was 2 years and 3 months imprisonment.
Orders Made
- Conviction recorded on Count 1 and Count 2, each being an offence of dishonestly obtaining property by deception under s 192E(1)(a) of the Crimes Act 1900
- Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
- Non-parole period of 18 months, commencing 29 August 2019 and expiring 28 February 2021
- Balance of term of 18 months, commencing 29 February 2021 and expiring 28 August 2022
- Indicative sentence of 2 years and 3 months imprisonment for each count
- Registrar directed to forward the forensic psychologist's report to the Department of Corrective Services
- Parole eligibility date: 28 February 2021
Key Takeaways
- An ICO is not a presumptively preferable alternative to full-time custody; under R v Fangaloka, general deterrence and proportionality remain mandatory sentencing considerations and can outweigh an offender's personal hardship in custody, including mental health vulnerabilities.
- Where an offender occupies a trusted financial role and exploits internal accounting systems over a sustained period to defraud multiple employers, the courts will treat the objective seriousness as significant even where no single transaction is especially large.
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established by a combination of diagnosed mental health conditions and the need for structured rehabilitative intervention, justifying an extended balance of term.
- A prior analogous conviction, and the commission of further offences while on conditional liberty, are substantial aggravating factors that diminish the weight otherwise available to subjective matters such as remorse and psychological vulnerability.
- Forensic psychological evidence of remorse, shame, and mental illness may be accepted as genuine without displacing the primacy of general deterrence in serious, trust-based fraud offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2), 53A, 66
- Crimes Act 1914 (Cth), s 20AB
Cases
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264
- CDPP v Poniatowska [2011] HCA 43
- CDPP v De La Rosa [2010] NSWCCA 194
- Cayahdi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Todd (1982) NSWLR 517