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District Court 17 May 2021

R v Hunter

[2021] NSWDC 375

Fraud & dishonesty
CRIME MONEY LAUNDERING

Citation: R v Hunter [2021] NSWDC 375
Court: District Court of New South Wales
Date: 17 May 2021
Judge(s): Bennett SC DCJ

Background

The offender, a man in his late sixties with a background as a mortgage broker, appeared for sentencing on four charges relating to a prolonged scheme of fraudulent loan arrangements and dealing with the proceeds of crime. The misconduct was directed against a single victim, a woman who trusted the offender to assist her with her home finances. The offending spanned from late July 2004 to 31 December 2018.

The scheme operated by the offender involved arranging fraudulent loans secured against the victim's Campbelltown property, rolling over funds from successive loans to discharge preceding ones, and diverting surplus proceeds into accounts he controlled. The victim was left with approximately $700,000 in losses, including a debt of $365,000 on a property she had previously owned outright.

The offender originally faced an indictment containing 14 counts. Following negotiations, he pleaded guilty to four counts on a reduced indictment, with two additional offences placed on Forms 1 (charges taken into account in sentencing without formal conviction) and several further charges abandoned. A ten-week trial was thereby avoided.

Legal Issues

  • What sentence was appropriate for four counts of obtaining money by false statements and dealing with proceeds of crime, spanning over fourteen years?
  • What discount applied for the guilty pleas, having regard to the utilitarian value of avoiding a complex and lengthy trial?
  • How should the offender's 1,044 days of pre-sentence custody and stringent bail conditions be brought to account?
  • Whether the offender had demonstrated genuine remorse and contrition, and how much weight to attribute to untested claims of altruistic motivation?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence?
  • How should Form 1 offences be reflected in the aggregate sentence?

Decision

Guilty plea discount

The court applied a 15 percent discount to each sentence for the utility of the guilty pleas. The Crown acknowledged the pleas avoided a ten-week trial involving a vulnerable witness, a witness with intellectual disability, and complications arising from a fractured friendship between prosecution witnesses. The court noted, however, that the agreed statement of facts was crafted in terms favourable to the offender, and that the guilty pleas did not carry the full discount available (at [22]-[29]).

Pre-sentence custody and bail conditions

The offender was remanded in custody for 1,044 days between 9 November 2017 and 16 September 2020. He was then subject to conditions amounting to effective home detention, including daily police reporting, restrictions on attending financial institutions, prohibition on encrypted communications, and a $50,000 surety requirement. The court allowed an additional 100 days to account for the period of stringent bail, bringing the total pre-sentence period to be credited to 1,144 days, with the aggregate sentence commencing 27 March 2018 (at [30]-[34]).

Objective seriousness of each count

Count one (obtaining $39,000 by false statements) was assessed towards the low mid-range for this category of offending (at [119]). Counts two ($109,212.74), three ($276,000), and four ($392,291.88) were each assessed as falling within the mid-range, given the planning, sophistication, breach of trust, and the rollover structure of the scheme (at [120]-[124]).

Remorse and subjective matters

The court rejected the offender's claimed motivation of altruism and his desire to help others as an explanation for the misconduct. The court applied the principles in Imbornone v R [2017] NSWCCA 144 and R v Qutami [2001] NSWCCA 353, treating untested representations about the offender's state of mind with scepticism in the absence of independent verification (at [111]). The offender did not give evidence, and statements attributed to him in the sentence assessment report were inconsistent with genuine remorse. The court declined to find remorse established under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (at [132]-[133]).

Special circumstances and aggregate sentence

The court found special circumstances, reducing the custodial component relative to the parole period. The offender's age of 68, his recent diagnosis of Type II diabetes, and the length of the sentence justified a longer parole period to accommodate whatever rehabilitation prospects existed. The court imposed an aggregate sentence with a non-parole period of 4 years and 3 months commencing 27 March 2018 (expiring 26 June 2022) and a head sentence of 7 years and 6 months (expiring 26 September 2025) (at [116], [139]).

Orders Made

  • Aggregate sentence of imprisonment of 7 years and 6 months imposed, with a non-parole period of 4 years and 3 months commencing 27 March 2018.

Key Takeaways

  • A 15 percent guilty plea discount was available where the pleas avoided a ten-week trial involving vulnerable witnesses, even though the agreed statement of facts was fashioned in terms favourable to the offender and the full range was not conceded (at [22]-[29]).
  • Untested claims of altruistic motivation carry limited weight at sentence. Consistent with Imbornone v R and R v Qutami, the District Court treated unverified representations about an offender's state of mind with scepticism, particularly where the sentence assessment report contained attributions inconsistent with remorse (at [111], [131]-[133]).
  • Pre-sentence custody and stringent bail conditions equivalent to home detention were both brought to account, with the court allowing an additional 100 days beyond the 1,044-day custodial period to reflect the burden imposed by the bail regime (at [33]).
  • Victim impact statements received under the common law (where transitional provisions meant neither the former nor amended statutory scheme applied) could be received as evidence of harm, but the sentencing court was required to limit their use to matters within the agreed facts and to avoid aggravating the offence beyond those parameters, consistent with R v De Simoni [1981] HCA 31 (at [77]-[80]).
  • Special circumstances were established by reference to the offender's age and a recent Type II diabetes diagnosis, producing a ratio between non-parole period and head sentence that departed from the standard proportion and allowed for a longer period on parole (at [116], [139]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1990
- Drug Misuse and Trafficking Act 1985

Cases
- Attorney General’s Application No.1 of 2002 [2002] NSWCCA 518
- Imbornone v R [2017] NSWCCA 144
- Porter v R [2008] NSWCCA 145
- R v Borkowski [2009] NSWCCA 102
- R v De Simoni [1981] HCA 31
- R v Harrison [2001] NSWCCA 79
- R v Qutami [2001] NSWCCA 353
- Siganto v The Queen [1998] 149 CLR 656