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Court of Criminal Appeal 8 February 2021

Abellanoza v R

[2021] NSWCCA 4

Fraud & dishonesty

Citation: Abellanoza v R [2021] NSWCCA 4
Court: Court of Criminal Appeal, NSW
Date: 8 February 2021
Judge(s): Meagher JA; Fullerton J; Button J

Background

The appellant was employed as Branch Accounting Supervisor at a Sydney cruise company earning approximately $88,000 per year. Between 2010 and 2018, she fraudulently manipulated the company's vendor payment software to divert funds into bank accounts she controlled, ultimately misappropriating $3,775,704 from her employer. The position of trust she occupied both enabled the scheme and allowed it to continue undetected for years.

A large portion of the funds, approximately $3.18 million, was withdrawn in cash and processed through gaming machines at several clubs. Gaming records showed a net return to the appellant of around $2.78 million in cash after losses, but the whereabouts of most of those funds could not be traced by police. At the time of sentencing, over $2.5 million remained unaccounted for.

The appellant was convicted of four representative charges of dishonestly obtaining a financial advantage by deception (covering 208 separate transactions), three further dishonesty offences on a Form 1, and three proceeds of crime offences including one charge of dealing with proceeds with intent to conceal. The sentencing judge imposed an aggregate sentence of 8 years with a non-parole period of 5 years. The appellant sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to find that the offending was motivated by a gambling addiction
  • Whether the sentencing judge erred in finding that the appellant's psychological conditions were not significantly causative of her offending
  • What onus of proof applies on sentencing when an offender advances a mitigating factual claim
  • Whether the aggregate sentence of 8 years (non-parole period 5 years) was manifestly excessive

Decision

Gambling addiction as motivation: The Court found no error in the sentencing judge's refusal to conclude that the offending was driven by gambling addiction. The sentencing judge was not required to find, to the criminal standard, that gambling was the motivating factor. Given that over $2.6 million in misappropriated funds remained entirely unaccounted for, it was open to her Honour to decline to be satisfied that gambling was the dominant or causative motivation.

Psychological conditions and causation: The appellant relied on a forensic psychologist's report suggesting various psychological conditions, but the Court upheld the sentencing judge's finding that those conditions were not significantly causative of the offending. The objective features of the offending, including its duration, the degree of planning and concealment involved, and the number and scale of transactions, supported that conclusion.

Onus on sentencing: Consistent with established authority, the Court confirmed that the onus rests on an offender who asserts a mitigating fact (such as a causal link between a mental condition and offending) to establish that fact on the balance of probabilities. Where an offender fails to discharge that onus, the sentencing judge is not obliged to accept the mitigating claim.

Manifest excess: The Court declined to find the sentence manifestly excessive. While the appellant had no prior convictions, had pleaded guilty, and had references in her favour with no evidence of ostentatious enjoyment of the proceeds, these matters were weighed against the total sum taken, the duration and sophistication of the fraud, and the very large amount that remained unrecovered. Special circumstances had already been found, reducing the non-parole period by approximately one year. The aggregate sentence was described as undoubtedly substantial but commensurate with the seriousness of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to make findings about an offender's motivation to the criminal standard; where a large sum of fraudulently obtained money remains unaccounted for, that fact can legitimately cast doubt over a claimed mitigating motive such as gambling addiction.
  • The onus of establishing a mitigating fact on sentence, including a causal nexus between a psychological condition and the offending, rests on the offender and must be satisfied on the balance of probabilities.
  • No error was established in the sentencing judge's assessment of moral culpability where the objective features of the offending, including years of sophisticated and concealed fraud involving hundreds of transactions, were inconsistent with a narrative of condition-driven impulse.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that positive subjective factors such as prior good character, guilty pleas, and community support do not automatically displace the weight given to the scale, duration, and financial impact of serious fraud offending.
  • Sentencing statistics showing that few comparable offenders received a longer sentence are not determinative of manifest excess; the aggregate sentence here was found to be well within the sentencing discretion in light of the factual findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(1), 193B(2)

Cases:
- Goodbun v R [2020] NSWCCA 77
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- Johnston v R [2017] NSWCCA 53
- Subramaniam v R [2013] NSWCCA 159
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270