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District Court 14 May 2021

R v Wu

[2021] NSWDC 627

Fraud & dishonesty

Citation: R v Wu [2021] NSWDC 627
Court: District Court of NSW
Date: 14 May 2021 (orders formally imposed 2 July 2021)
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to three offences: two counts of dishonestly obtaining a financial advantage by deception under the NSW Crimes Act 1900, and one count of market manipulation under the Corporations Act 2001 (Cth). The offences spanned the period from late 2012 to late 2015.

The two fraud offences involved home loan applications to the Commonwealth Bank of Australia. In 2012, the offender submitted forged bank statements to support a loan of $390,000 to purchase a property at The Ponds, NSW. The forged documents fabricated account balances, removed genuine transactions, and falsely presented joint accounts as being solely in the offender's name. He also concealed his marital status and a credit card liability. A similar pattern of document falsification occurred in 2015 in connection with a $260,000 loan to purchase a property at Colebee, NSW, including a false payslip purportedly from his former employer, Woolworths. Both loans were ultimately repaid in full with no defaults.

The market manipulation offence related to trading activity in shares of Traditional Therapy Clinics Limited (TTC) between September and November 2015. The offender carried out multiple transactions that created an artificial price for TTC shares. Each of the three offences carries a maximum penalty of ten years' imprisonment.

  • What sentences were appropriate for two State fraud offences under s 192E(1) of the Crimes Act 1900 (NSW), each carrying a maximum of ten years' imprisonment?
  • What sentence was appropriate for a Commonwealth market manipulation offence under s 1041A of the Corporations Act 2001 (Cth), to be determined under Part 1B of the Crimes Act 1914 (Cth)?
  • Whether the offender's cooperation with authorities, early guilty plea, personal circumstances, and full repayment of loans (with no defaults) warranted a sentence served in the community rather than by way of full-time custody.
  • Whether the offender was suitable for an Intensive Correction Order (ICO) in respect of the Commonwealth offence, including suitability for community service and home detention conditions.

Decision

Buscombe DCJ sentenced the offender on all three matters without imposing full-time custodial terms. The court noted that the agreed facts document, running to 32 pages, was unnecessarily lengthy given that more concise agreed facts would have better served the sentencing process.

For the two State fraud offences, the court imposed Community Correction Orders of two years and six months on each count. The court took into account the offender's guilty pleas, his cooperation with investigating authorities during a recorded interview, the full repayment of both loans without default, and an assessment that he posed a low risk of reoffending.

For the Commonwealth market manipulation offence, the court imposed a sentence of one year and ten months' imprisonment, to be served by way of an Intensive Correction Order. A Sentencing Assessment Report found the offender suitable for both community service and home detention conditions. The court was satisfied that serving the sentence in the community would not compromise community safety.

The ICO for the Commonwealth offence carried the standard conditions (no further offending, supervision by Community Corrections) along with additional conditions requiring 200 hours of community service and home detention for the first 12 months of the order.

Orders Made

  • The offender was convicted of all three offences to which he pleaded guilty.
  • Two State fraud offences: Community Correction Order imposed for each offence, for a period of 2 years and 6 months, commencing 14 May 2021 and expiring 13 November 2023.
  • Commonwealth market manipulation offence: Sentence of 1 year and 10 months' imprisonment, to be served by way of Intensive Correction Order, commencing 2 July 2021 and expiring 1 May 2023.
  • Standard ICO conditions: the offender must not commit any further offences; the offender is to be supervised by Community Corrections.
  • Additional ICO conditions: 200 hours of community service; home detention for the first 12 months of the order.

Key Takeaways

  • The District Court imposed entirely community-based orders across three serious offences, each carrying a ten-year maximum, where the offender demonstrated full repayment of the fraudulently obtained loans, a low assessed risk of reoffending, genuine cooperation with investigators, and early guilty pleas.
  • Under Part 1B of the Crimes Act 1914 (Cth), a Commonwealth offence sentence of imprisonment can be served by way of an Intensive Correction Order, provided the offender is assessed as suitable for the conditions attached, including home detention and community service.
  • A positive Sentencing Assessment Report finding low reoffending risk was a significant factor in the court's conclusion that community safety would not be compromised by a non-custodial disposition.
  • The court expressly criticised the length and lack of concision in the agreed facts document, noting that even where offences are complex and uncommon, parties should make greater efforts to present agreed facts concisely.
  • Full repayment of fraudulently obtained funds, without any defaults, formed part of the factual matrix before the court, though the offences themselves remained serious given the deliberate and sustained nature of the document falsification.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Crimes Act 1914 (Cth), ss 16A(2)(j), (ja), 17A, 20A
- Corporations Act 2001 (Cth), s 1041A
- Crimes Regulations 1990 (Cth), Regulation 6

Cases Cited
- Joffe and Stromer v The Queen [2012] NSWCCA 277
- DPP v JM [2013] HCA 30
- DPP v De La Rosa [2010] NSWCCA 194
- Sabra v The Queen [2015] NSWCCA 38
- The Queen v Scook [2008] WASCA 114
- The Queen v Schwabegger [1998] 4 VR 649
- The Queen v R Gay [1998] 4 VR 649
- DPP v Gregory [2011] VSCA 145