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District Court 29 October 2021

R v Jolley

[2021] NSWDC 647

Fraud & dishonesty
CRIME SENTENCE

Citation: R v Jolley [2021] NSWDC 647
Court: District Court of New South Wales
Date: 29 October 2021
Judge: Bourke SC DCJ

Background

The offender held the position of Dean of the Faculty of Science at the University of Technology Sydney (UTS). She became involved in a contentious review process concerning the viability of the Traditional Chinese Medicine course, which she ultimately recommended closing. That recommendation generated significant external opposition, including protests and petitions from students, staff, and members of the TCM community.

Between July and October 2019, UTS security and police investigated a series of threatening letters that the offender reported receiving or discovering. The letters contained threats directed at her personally, with some suggesting that unknown persons intended to harm her or had already made her ill. The offender told investigators she had found these letters in her bag, on staffroom tables, in her post office box, and elsewhere.

The jury rejected the offender's account. It found that she had fabricated the letters herself and had staged or manufactured each discovery. She was also convicted of dishonestly causing a financial disadvantage to UTS by deception, arising from UTS incurring the costs of extensive security measures taken in response to the false threats.

  • Whether the offender's conduct in fabricating and reporting threatening letters constituted the offence of conveying false information likely to cause a person to fear for the safety of another, under s 93Q(1) of the Crimes Act 1900
  • Whether the offender dishonestly caused a financial disadvantage to UTS by deception, under s 192E(1)(b) of the Crimes Act 1900
  • What sentence was appropriate across 11 counts, having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence should be served by full-time custody or by way of an Intensive Corrections Order (ICO)

Decision

The offender was convicted by the jury on 10 counts of conveying false information likely to make the recipient fear for the safety of a person, knowing the information was false or misleading (s 93Q(1), Crimes Act 1900, maximum five years imprisonment each). She was also convicted on one count of dishonestly causing a financial disadvantage by deception (s 192E(1)(b), maximum 10 years imprisonment). The court accepted the jury's findings and made its own factual findings consistent with the verdicts, including that the offender created and staged each letter-discovery incident.

The court found that UTS incurred substantial costs as a direct result of the deception. These included daily security escorts for the offender to and from work by train and later by hire car, CCTV installation, and a permanent security escort on campus. These expenses were the subject of the financial disadvantage count.

In determining the appropriate sentence, the court weighed the seriousness of the conduct, which involved sustained dishonesty over several months and caused real harm to UTS and its staff, against the offender's personal circumstances and rehabilitation prospects. The court acknowledged the need for adequate punishment, deterrence, denunciation, and accountability, while also recognising that further time in custody would be detrimental to the offender's rehabilitation.

The court concluded that an Intensive Corrections Order was more likely than full-time detention to address the offender's risk of reoffending. It did not consider her to present a significant risk to community safety generally. The court noted that a degree of accumulation of sentences was necessary given the number of discrete offences committed across an extended period.

Orders Made

  • An Intensive Corrections Order imposed for a period of two years and six months
  • Standard conditions applied: no commission of any offence; submission to supervision by Community Corrections
  • Additional condition: the offender must undertake counselling as directed by Community Corrections
  • Additional condition: the offender must perform 100 hours of community service
  • The offender directed to report to the Sutherland office of Community Corrections by telephone within seven days

Key Takeaways

  • The District Court confirmed that fabricating threatening letters and staging their discovery can constitute the offence of conveying false information likely to cause fear for a person's safety under s 93Q(1) of the Crimes Act 1900, even where the intended "victim" is the person creating the letters.
  • A conviction for dishonestly causing financial disadvantage by deception under s 192E(1)(b) was established where an institution incurred substantial and ongoing security costs in direct response to the offender's false representations.
  • Factual findings at sentencing must be consistent with the jury's verdicts; matters in aggravation must be proved beyond reasonable doubt, while mitigating matters need only be established on the balance of probabilities.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when assessing whether an ICO is appropriate, and the court must compare the effect of an ICO against full-time detention in terms of reducing reoffending risk.
  • Where multiple counts arise from discrete acts over an extended timeframe, some accumulation of sentences is likely to be required, even where an ICO is ultimately imposed rather than full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93Q(1), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66

Cases
- Baines v R [2016] NSWCCA 132
- Jaques v R [2002] NSWCCA 444
- Kennedy v R [2018] NSWCCA 43
- Linney v R [2013] NSWCCA 251
- R v Gambier [2009] QCA 138
- R v Korat [2021] NSWDC 29
- Zreika v R [2012] NSWCCA 44