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District Court 15 November 2019

R v Bird

[2019] NSWDC 675

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE FORMS 1 DISHONESTLY OBTAIN FINANCIAL ADVANTAGE LARCENY AGGRAVATION

Citation: R v Bird [2019] NSWDC 675
Court: District Court of New South Wales
Date: 15 November 2019
Judge: Judge Priestley SC DCJ

Background

The offender, who preferred the name Daniel Bird, appeared for sentence on 14 charges arising from two discrete periods of offending in 2018 and early 2019. Six matters were dealt with as committal offences and eight as summary matters, with two additional Form 1 offences taken into account. The charges included multiple counts of dishonestly obtaining property or a financial advantage by deception (under s 192E of the Crimes Act), larceny, failing to appear in accordance with a bail undertaking, and related offences.

The offender's primary scheme involved responding to motor vehicle advertisements, agreeing on a purchase price, and then purporting to effect an electronic bank transfer while showing the vendor a document that appeared to confirm payment. In practice, either the transfer was cancelled or no funds existed to complete it. Other offences involved motorcycles and goods pawned at Cash Converters. The offending spanned two periods: April 2018 and late October 2018 to January 2019, with an intervening period of custody and a brief stay at a residential rehabilitation facility.

The offender's personal circumstances featured a troubled and traumatic upbringing, a significant drug dependency, and prior criminal history. His offending was expressly motivated by the need to fund his drug habit. He used his own name, his own identification, and his own bank accounts throughout, and was on occasion photographed or captured on CCTV.

  • What was the appropriate objective seriousness of each offence, having regard to the maximum penalties, amounts involved, degree of planning, and victim vulnerability?
  • How should the court apply the principles of totality and concurrency when imposing an aggregate sentence across 14 charges?
  • What weight should be given to the offender's subjective circumstances, including his drug dependency, traumatic background, and limited prospects for rehabilitation?
  • Whether the offender qualified as an eligible convicted offender for referral to the Drug Court under s 18B of the Drug Court Act 1998.

Decision

Judge Priestley assessed the s 192E offences as ranging from low to below-mid-range in objective seriousness. While the offending involved a degree of planning, it was thoroughly unsophisticated: the offender used his real name, his own identification and bank accounts, and was frequently captured on camera. The court accepted the Crown's submissions on both planning and lack of sophistication. The vulnerability of private sellers, as distinct from commercial dealers, was treated as an aggravating factor affecting the seriousness assessment for relevant counts.

In considering the offender's subjective case, the court acknowledged his sad and traumatic upbringing, his drug addiction as the clear driver of the offending, and his conduct on conditional liberty at the time the offences were committed. The court noted that the offending during the second period occurred shortly after the offender left a rehabilitation facility, in circumstances where he asserted he had been assaulted. Those circumstances were accepted in his favour given they were unchallenged.

Applying the totality principle and balancing rehabilitation against punishment, general deterrence, and the need to protect the community, the court imposed an aggregate sentence. The court noted the offender's drug dependency as a significant factor and made a strong recommendation for his participation in a compulsory drug treatment program, observing that he met all eligibility criteria under s 5A of the Drug Court Act 1998 save for a two-month shortfall in the balance of his non-parole period.

The court determined that the offender did not qualify for referral to the Drug Court under s 18B because his non-parole period balance of 16 months fell short of the required minimum of 18 months. The court nonetheless expressly exhorted those responsible to consider the offender for the compulsory drug treatment plan.

Orders Made

  • Aggregate sentence of 4 years imprisonment, commencing 16 March 2019 and expiring 15 March 2023
  • Non-parole period of 2 years, commencing 16 March 2019 and expiring 15 March 2021 (earliest eligible release date: 15 March 2021)
  • Compensation order of $3,000 to the victim of Count 1 (damaged Commodore), payable to the District Court Registrar
  • Compensation order of $6,000 to Kasdell Pty Ltd t/as North Coast V-Twins, payable to the District Court Registrar
  • Compensation order of $2,259 to Carr Brothers Motorcycles, payable to the District Court Registrar
  • Compensation order of $3,000 to Cash Converters Shellharbour, payable to the District Court Registrar

Key Takeaways

  • A degree of planning does not prevent a finding that offending was thoroughly unsophisticated: where the offender used his real identity, his own financial accounts, and was repeatedly captured on CCTV, the District Court treated the offending as low to below-mid-range in objective seriousness despite the recurring nature of the scheme.
  • Drug addiction, while not a mitigating factor that excuses offending, remained relevant to the court's assessment of the offender's moral culpability and to the emphasis placed on rehabilitation as a sentencing objective.
  • The status of victims matters in assessing objective seriousness: private sellers were treated as more vulnerable than commercial dealers, resulting in a higher seriousness rating for offences targeting individuals responding to Gumtree advertisements.
  • Eligibility for Drug Court referral under s 18B of the Drug Court Act 1998 is strictly assessed against the statutory minimum balance of non-parole period, and a shortfall of even two months will preclude referral regardless of how clearly the offender otherwise satisfies the criteria.
  • Compensation orders in fraud cases where the property was recovered but damaged may be assessed by way of reasonable judicial estimate where direct evidence of repair costs is unavailable, rather than by making no order at all.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 154F and 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166 and 167
- Bail Act 2013 (NSW), s 79(1)
- Drug Court Act 1998 (NSW), ss 5A and 18B

Cases:
- R v Price [2016] NSWCCA 50
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR