AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 March 2021

R v Entwistle

[2021] NSWDC 159

Fraud & dishonesty
CRIME SENTENCE CTH OFFENCE NO ACTUAL BENEFIT OBTAINED FOR HIMSELF OFFENDING OVER 18 MONTHS PERIOD GUILTY PLEA

Citation: R v Entwistle [2021] NSWDC 159
Court: District Court of New South Wales
Date: 26 March 2021
Judge(s): Neilson DCJ

Background

The offender was a Commonwealth public servant employed by the Department of Agriculture and Water Resources (DAWR) as a supervisor of a self-assessment clearance team. In that role, he had authorised access to a government cargo database called the Integrated Cargo System (ICS), which records information about goods imported into Australia.

Over approximately 18 months between April 2016 and October 2017, the offender made 220 unauthorised accesses to restricted data in DAWR's computer systems. He used this access to track shipments for a private company called Nano Logistics Pty Ltd, and to obtain information about competitors' and suppliers' consignments and pricing. The offender had assisted in incorporating Nano and had financial connections to its directors. He never disclosed his involvement with Nano to DAWR, as he was required to do.

The offender was charged with being a Commonwealth public official who engaged in conduct in the exercise of his official duties with the intention of dishonestly obtaining a benefit for himself and another person, contrary to s 142.2(1) of the Criminal Code (Cth). He initially pleaded not guilty to four counts but entered a guilty plea to one count shortly before the scheduled trial date in October 2020.

  • What discount should be applied to the sentence for the guilty plea, given it was entered late and shortly before a scheduled trial?
  • What weight should be given to the offender's prior good character, military service, and low risk of reoffending?
  • Whether the sentence should be served as full-time imprisonment or by way of an Intensive Corrections Order (ICO)?
  • Whether an additional fine was appropriate to strengthen the deterrent effect of the sentence?

Decision

Guilty plea discount. The plea was entered on the eve of trial, meaning the NSW statutory scheme would ordinarily allow a discount of no more than 10%, and likely only 5%. However, the Crown conceded the plea had significant utilitarian value. The trial would have been lengthy, estimated at two weeks, and required detailed explanation of the DAWR computer system to a jury. The trial was also listed during a period when jury trials were limited by COVID-19 restrictions. On that basis, Neilson DCJ allowed a discount of 15%.

Objective seriousness and personal circumstances. The offending involved a sustained breach of trust by a public official over 18 months, with 220 unauthorised accesses. The court acknowledged that no actual financial benefit was received by the offender personally, though he expected future gain. In mitigation, the offender had no prior criminal history, had served nearly 12 years in the Australian Army including active service overseas, and demonstrated genuine remorse. His prior good character was treated as a significant mitigating factor.

Mode of serving the sentence. The court found the offender's risk of reoffending to be low. A sentencing assessment report confirmed he was a suitable candidate for an ICO and could perform community service work. Neilson DCJ determined there was no real reason for the sentence to be served by way of full-time detention and imposed an ICO instead. A fine of $10,000 was also imposed to strengthen the deterrent effect of the overall sentence.

Orders Made

  • Convicted of the offence under s 142.2(1) of the Criminal Code (Cth)
  • Sentenced to imprisonment for one year and 11 months, to be served by way of Intensive Corrections Order
  • Terms of the ICO:
  • Must not commit any offence
  • Must submit to supervision by a community corrections officer
  • Must complete 500 hours of community service work
  • Must report to Community Corrections at St Leonards by telephone within seven days
  • Fine of $10,000 imposed

Key Takeaways

  • A late guilty plea entered on the eve of a complex trial can attract a higher-than-usual utilitarian discount where the Crown concedes significant resources would have been saved, including where COVID-19 restrictions were constraining jury trial capacity.
  • Under the Crimes (Sentencing Procedure) Act 1999, an ICO is a form of imprisonment served in the community. The sentencing court must consider community safety and assess whether an ICO or full-time detention is more likely to address the offender's risk of reoffending; a low assessed risk supports an ICO.
  • The District Court treated sustained misuse of a government computer system by a trusted public official as a serious breach of that trust, even where no actual financial benefit was received by the offender personally.
  • Prior good character, including lengthy and meritorious military service, remained a relevant mitigating factor even in cases involving sustained and deliberate offending.
  • A financial penalty can be imposed alongside an ICO where the sentencing court considers it necessary to reinforce the general deterrent effect of the overall sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 142.2(1) (dishonestly obtaining a benefit as a Commonwealth public official)
- Criminal Code Act 1995 (Cth), s 478.1(1) (unauthorised access to/modification of restricted data)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 5A, 7, 66
- Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Cases
- Imbornone v R [2017] NSWCCA 144
- Lee v R [2020] NSWCCA 307
- R v Einfeld [2009] NSWSC 119
- R v Farquhar (unreported, CCA, 29 May 1985)
- R v Jackson and Hakim (1988) 33 A Crim R 33
- R v Obeid (No 12) [2016] NSWSC 1815
- Ryan v The Queen (2001) 206 CLR 267
- Wany v The DPP [2020] NSWCA 318