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District Court 13 May 2019

R v Pfuhl

[2019] NSWDC 553

Fraud & dishonesty
CRIMINAL LAW SENTENCE TOTALITY

Citation: R v Pfuhl [2019] NSWDC 553
Court: District Court of NSW
Date: 13 May 2019
Judge: Judge W Hunt

Background

The offender pleaded guilty to one count of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act, carrying a maximum penalty of ten years' imprisonment. Two related counts proceeded to a judge-alone trial and resulted in acquittals on the same day as sentencing.

The offence occurred on 10 August 2017. The victim had been detained, electrocuted with a homemade taser, and robbed at knifepoint and at gunpoint by two other offenders. The offender, who was present and aware of what had happened to the victim, left the premises with the victim's bank card and PIN, withdrew $500 from a nearby ATM, returned the cash to one of the other offenders, and received $20 in return.

At the time of the offence, the offender was on bail for an aggravated break, enter and steal. He was in his late twenties with a limited criminal history, including juvenile dishonesty matters. A psychological report noted a difficult upbringing, significant family support, prior stable employment, and methamphetamine use linked to personal and financial setbacks.

  • What was the appropriate objective seriousness of the offence, given the circumstances in which the financial advantage was obtained?
  • Whether the s 5 threshold for full-time imprisonment had been crossed.
  • What utilitarian discount applied to the guilty plea, given it was indicated early but formally entered late, after the judge-alone trial had run?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio.
  • How principles of totality should affect the sentence, given a prior sentence was already being served.

Decision

Judge Hunt assessed the objective seriousness of the offence as below the mid-range but not in the low range. The offending involved a degree of planning (acquiring the card, PIN, and arranging a funds transfer), and was made more serious because the offender knew the victim had been terrorised beforehand. Although the offender's personal gain was only $20, his role in withdrawing the money was described as vital.

The submission that the s 5 threshold for full-time imprisonment had not been crossed was rejected. That submission depended on a finding of lowest-end seriousness, which the court expressly declined to make. The offender's breach of bail was an aggravating factor under the sentencing legislation.

A 20% utilitarian discount was applied to the starting point of two years' imprisonment. The court accepted that, although the formal plea was entered late, it had enabled the other two counts to proceed by judge-alone trial rather than jury trial, producing a meaningful practical benefit to the justice system.

Special circumstances were found on three grounds: totality considerations, the fact that this was effectively the offender's first period in full-time custody, and the need for a longer parole period to support reintegration. Reflecting totality principles, the sentence was structured to be partly concurrent and partly cumulative on the earlier sentence already being served.

Orders Made

  • The offender was convicted of one count of dishonestly obtaining a financial advantage by deception.
  • Sentenced to 19 months' imprisonment, commencing 29 July 2018 and expiring 28 February 2020.
  • Non-parole period fixed at 10 months, with an earliest release date of 28 May 2019.

Key Takeaways

  • A guilty plea entered formally only at the District Court level can still attract a meaningful utilitarian discount where it produced demonstrable efficiencies, such as enabling a judge-alone trial on related counts.
  • Offending committed in the knowledge that a victim has been subjected to serious violence by co-offenders will be treated as more serious, even if the offender's own role was more limited in scope.
  • Under the Crimes (Sentencing Procedure) Act, a court sentencing for a second offence may apply both partial concurrence and partial accumulation where totality and the circumstances of conditional liberty both require adjustment.
  • Special circumstances sufficient to extend the parole period beyond the default ratio can be established where the offender is serving their first period of full-time custody and requires structured support to reintegrate.
  • Where an offender's breach of conditional liberty (bail) is treated as an aggravating factor, the sentencing court may take the earlier sentence into account under totality without this reducing the weight given to that aggravating circumstance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 5

Cases: No cases were cited in the judgment.