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Court of Criminal Appeal 8 October 2021

Hughes v R

[2021] NSWCCA 238

Fraud & dishonesty

Citation: Hughes v R [2021] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 8 October 2021
Judge(s): Payne JA at [1]; Wilson J at [53]; Fagan J at [54]

Background

The applicant was employed as a practice manager at a medical centre in Ballina, NSW. In that role, she had sole responsibility for the business's financial transactions and was required to maintain accurate accounting records using MYOB software. Over a period of nearly seven years, she made 329 unauthorised transfers from the service trust's bank account to her own personal accounts, totalling $179,153.60.

The applicant pleaded guilty in the Lismore Local Court to one "rolled up" count of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). A rolled-up count is a single charge that encompasses multiple instances of the same type of offending rather than charging each act separately. She was subsequently sentenced in the District Court to two years and six months' imprisonment with a non-parole period of 18 months.

The applicant later sought leave to appeal against her conviction, arguing that the elements of the offence, in particular the element of "deception", were not established by the agreed statement of facts tendered at the sentencing hearing.

  • Whether the conviction was wrong in law because the agreed facts were insufficient to establish the element of "deception" under s 192E(1)(b) of the Crimes Act 1900 (NSW)
  • Whether any causal link existed between the alleged deception (the falsified MYOB entries) and the financial advantage obtained, where those entries may have been made after the transfers themselves
  • Whether the applicant could "obtain" a financial advantage by "keeping" it, within the meaning of s 192D(1)(c) of the Crimes Act 1900 (NSW)
  • Whether a miscarriage of justice arose from the conviction

Decision

The Court refused leave to appeal unanimously. Payne JA, with Wilson J and Fagan J agreeing, held that the applicant's guilty plea constituted an admission of all elements of the offence, at least to the minimum level necessary to support the conviction. The Court found this was not a case where the facts admitted by the plea were incapable in law of sustaining the charge. No evidence of ignorance, fear, duress, mistake, or any other circumstance undermining the integrity of the plea had been put before the Court.

On the deception question, Payne JA found that the relevant deception was broader than the MYOB entries alone. By her conduct over the six-and-a-half years of offending, the applicant made an ongoing false representation to her employer and its bank that she was acting within the scope of her authority when transferring funds. That kind of sustained, implicit deception was sufficient for the purposes of s 192E(1)(b).

On causation, the Court held that even if the MYOB entries were treated as the entire universe of the deception, they were causative in any event. The false accounting entries concealed each misappropriation and thereby allowed the applicant to retain her position and continue committing further offences. A sufficient factual basis for causation therefore existed on the agreed facts.

Wilson J added that the applicant had not required the prosecution to specify, with precision, the nature of her deceit or the mechanism of causation at the time of her plea. Having accepted the charge at a high level of generality, she could not unilaterally specify those elements on appeal and then contend they were unsupported by the evidence. Fagan J agreed, observing that the application lacked merit without any evidence from the applicant to impugn the integrity of the plea.

Orders Made

• Application for leave dismissed with no merit found

Key Takeaways

  • A guilty plea operates as an admission of all elements of the charged offence, and an appellate court will not interfere with a conviction founded on such a plea unless the admitted facts are incapable in law of supporting the charge, or there is evidence undermining the integrity of the plea itself.

  • In dismissing the appeal, the Court confirmed that the deception required by s 192E(1)(b) of the Crimes Act 1900 (NSW) is not limited to specific, documented false statements. A sustained course of conduct falsely representing authorisation over an extended period can constitute sufficient deception.

  • Under the Crimes Act 1900 (NSW), causation between deception and financial advantage can be established where false accounting concealed earlier misappropriations and enabled the offender to remain in position to commit further offences.

  • Where an accused accepts a charge at a high level of generality at the time of plea, without requiring the prosecution to particularise the mode of deception or causation, the accused cannot later identify those elements with precision on appeal and argue they lack evidentiary support.

  • Applying Meissner v The Queen (1995) 184 CLR 132, a court may act on a guilty plea entered openly by a person of full age and apparent understanding who exercised a free choice; no miscarriage of justice arises merely because specifics of the offending were left at a general level in the agreed facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192B(1), 192D, 192E
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)

Cases
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Maxwell v The Queen (1996) 184 CLR 501
- R v Sagiv (1986) 22 A Crim R 73
- R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99
- Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4
- National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21
- Director of Public Prosecutions v Ray [1974] AC 370
- R v Clucas [1949] 2 KB 226
- Ho and Szeto v R (1989) 39 A Crim R 145
- Flack v R [2011] NSWCCA 167
- Layt v R [2020] NSWCCA 231
- Duncan v Independent Commission Against Corruption [2016] NSWCA 143
- Bobbe v R (No 2) [2021] NSWCCA 150