Citation: R v Oberg; R v Peters [2019] NSWDC 697
Court: District Court of New South Wales
Date: 1 November 2019
Judge: Judge J Priestley
Background
Two accused were convicted following a jury trial of fraud offences spanning approximately 2007 to 2012. The offending centred on the presentation of cheques that each accused knew to be valueless, thereby deceiving financial institutions and government agencies into providing false credits or waiving payment obligations. The financial advantages obtained ranged from a few hundred dollars to $1.5 million per transaction.
The accused had a pre-existing business relationship: one had operated a pest control business and later became involved in horse trading, while the other had provided him with accounting services. By 2006, the first accused had been declared bankrupt, and a claimed debt of approximately $150,000 was said to be owed to the second. The sentencing court was unable to determine the truth of this claim, having found both accused lacked credibility.
The jury returned guilty verdicts on 14 of the 15 counts. Count 10 had been the subject of a directed not guilty verdict on the Crown's own application. Charges were brought under the now-repealed s 178BA of the Crimes Act (maximum five years) and, for the most recent offence, the current s 192E (maximum ten years). One accused faced a separate sentencing exercise that had already been conducted by another judge, requiring careful attention to totality at the present hearing.
Legal Issues
- What sentences were appropriate for each count of fraud, having regard to the nature, scale, and duration of the offending?
- How should the principle of totality apply where one accused had already received a sentence from a different judge for related offending?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term under s 44 of the Crimes (Sentencing Procedure) Act.
Decision
The court characterised the offending as organised, premeditated, and calculated, carried out over a prolonged period. Judge Priestley found that the scheme involved deliberate exploitation of the banking and payment systems and was not impulsive or opportunistic. The sums involved were substantial, with single transactions reaching $1.5 million.
In addressing the sentence for the accused whose prior sentence had already been imposed, the court applied the totality principle to ensure the combined effect of both sentences remained proportionate and just. The court aligned the structure of the new sentence with the special circumstances allowance already granted by the other judge, maintaining approximate consistency in the ratio between non-parole period and balance of term across the overall sentencing package.
The court found special circumstances existed, particularly by reference to the accused's age and health, justifying a departure from the standard statutory ratio under s 44. The non-parole period for the sentence imposed at this hearing was set at just over 60 per cent of the head sentence, with the balance of term representing a proportion well in excess of the statutory one-third.
Orders Made
- Oberg convicted on counts 2, 5, 6, 7, 8, 9, 11, 12, 13, and 14.
- Aggregate sentence of 9 years imprisonment, commencing 7 July 2021 and expiring 6 July 2030.
- Non-parole period of 5 years and 3 months, commencing 7 July 2021 and expiring 6 October 2026.
- Earliest date for release: 6 October 2026.
Note: The orders extracted in the provided text relate to Oberg only. The sentencing outcome for Peters is not fully reproduced in the text provided.
Key Takeaways
- The District Court confirmed that presenting a cheque known to have no value, in order to obtain a credit or evade a payment obligation, satisfies the elements of fraud under both the repealed s 178BA and the current s 192E of the Crimes Act.
- Where co-accused have been sentenced separately by different judges, the totality principle requires the second sentencing court to structure its orders so the overall combined punishment remains proportionate, not merely to aggregate sentences without regard to the earlier one.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act need not arise solely from rehabilitation prospects; in this case, the accused's age and health were treated as relevant considerations justifying a varied non-parole ratio.
- A claimed legitimate purpose for the creation of false credits, such as directing funds toward an investment, does not constitute a defence to a charge of dishonestly obtaining a financial advantage by deception: the offence is complete upon the creation of the false credit.
- Organised and premeditated fraud conducted over multiple years and involving large sums will be treated as serious offending warranting significant custodial terms, even where some individual transactions involve comparatively modest amounts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 178BA (repealed), 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases
- Postiglione v R [1997] HCA 26
- R v MAK (2006) 167 A Crim R 159
- R v McInerney (1986) 42 SASR 111