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District Court 6 May 2022

R v Foster

[2022] NSWDC 467

Fraud & dishonesty

Citation: R v Foster [2022] NSWDC 467
Court: District Court of New South Wales
Date: 6 May 2022
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1984, appeared for sentencing on federal charges arising from a telecommunications-based fraud scheme operating between late 2019 and September 2020. He had a substantial prior criminal history, including convictions for fraud, child pornography, and conspiracy offences, and had served a significant period of custody between 2009 and 2014.

The offender's background was complicated by serious and longstanding mental illness. He had been admitted as an involuntary patient in 2017 after exhibiting florid psychotic symptoms, including elaborate conspiratorial belief systems involving "reptilians," world domination, and communications through his spinal cord. He absconded from Cumberland Hospital in April 2017 and was not located until his arrest in September 2020, when police found him at home and he was again hospitalised before being taken into custody in December 2020. Expert evidence before the court diagnosed a psychotic illness alongside polysubstance use disorder, with a query as to whether autistic spectrum disorder was also present.

The charges arose from a "smishing" scheme (fraud conducted via SMS messages using telecommunications infrastructure). The offender pleaded guilty to dealing in identification information using a carriage service, using telecommunications equipment to facilitate fraud, dealing in proceeds of crime ($27,925), and possessing methamphetamine (4.1 grams).

  • What discount should be applied for the early guilty pleas?
  • How should the offender's mental illness and psychiatric history affect the assessment of moral culpability and the weight given to general deterrence?
  • How should the court treat psychiatric and psychological reports where the offender did not give evidence?
  • What aggregate sentence was appropriate, having regard to totality, accumulation, co-offending, and the conditions of custody?
  • From what date should the sentence commence, given the offender's involuntary psychiatric admission and prior Magistrate's orders?

Decision

Williams SC DCJ applied a 25% discount for the early guilty pleas across all counts, reflecting their utilitarian value. The indicative sentences before aggregation were 20 months for the identification information offence, 30 months for the telecommunications fraud (incorporating the proceeds of crime matter taken into account under the schedule), and 4 months for the drug possession.

On the question of psychiatric evidence, the judge accepted the principle confirmed in Lloyd v The Queen [2022] NSWCCA 18 that the oft-cited caution in R v Qutami is not a principle of law. The weight to be given to statements made by an offender to a psychiatrist, where the offender does not give evidence, remains a matter for the individual assessment of the sentencing judge. Where professional psychiatric opinions are unchallenged, they are not to be discounted merely because the offender did not repeat the underlying history in evidence.

The court accepted that the offender's background of deprivation, his chronic mental illness, and his polysubstance use disorder were relevant to reducing his assessed moral culpability and to moderating the weight given to general deterrence, consistent with Bugmy v The Queen (2013) 249 CLR 571 and Prince v The Queen [2020] NSWCCA 268. Some specific deterrence remained necessary, and rehabilitation prospects were contingent on ongoing treatment.

Regarding commencement, the court accepted that the period from 22 September 2020, when the offender was admitted as an involuntary patient, through to his formal entry into custody should be acknowledged. Accordingly, the aggregate sentence was backdated to 22 December 2020. The court also noted, as aggravating factors, that the offences were committed for financial gain and that the offender had a prior record. Conditions of custody were weighty mitigating factors: the offender had been held in protective custody and had endured significant additional hardship during COVID-19 lockdowns.

Orders Made

  • The offender was convicted of each offence.
  • A 25% discount was applied to each count for early guilty pleas.
  • Indicative sentences: Sequence 5, 20 months; Sequence 7 (incorporating the s 16BA schedule matter, Sequence 11), 30 months; Sequence 10, 4 months.
  • An aggregate sentence of 3 years and 7 months was imposed, commencing 22 December 2020.
  • A non-parole period of 2 years and 2 months was imposed, expiring 21 February 2023.
  • Forfeiture orders were made by consent pursuant to short minutes of order dated 6 May 2022.

Key Takeaways

  • The District Court confirmed, following Lloyd v The Queen [2022] NSWCCA 18, that the caution articulated in R v Qutami about relying on prisoner statements to psychiatrists is a general observation only, not a principle of law. The weight of such evidence is always for the individual sentencing judge to assess.

  • Unchallenged professional psychiatric opinions do not lose force simply because the offender chose not to give evidence to the same effect. The correct approach, drawn from Devaney v The Queen [2012] NSWCCA 226, distinguishes between discounting an offender's own statements and diminishing the weight of an expert's diagnostic opinion formed from history.

  • A chronic background of mental illness and polysubstance use disorder can reduce the sentencing court's assessment of moral culpability and lessen the weight accorded to general deterrence, in accordance with the principles in Bugmy v The Queen.

  • Where an offender has been held as an involuntary psychiatric patient during a period that overlaps with prior custodial orders, the sentencing court has a discretion to account for that period when fixing the commencement date of a new term, particularly where questions of totality and accumulation are engaged.

  • Conditions of custody, including placement in protective custody and exposure to extended COVID-19 lockdowns, were treated as significant factors increasing the hardship of the sentence actually served and were weighed accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16A(2)(k), s 16A(2)(p), and s 16BA
- Criminal Code (Cth), ss 308.1, 372.10, 400.6, 474.14(2)
- Mental Health Act 2007 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Devaney v The Queen [2012] NSWCCA 226
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP v Hill & Kamay [2015] VSC 86
- Dungay v The Queen [2020] NSWCCA 209
- FL v The Queen [2020] NSWCCA 114
- Imbornone v R [2017] NSWCCA 14
- Khan v The Queen [2022] NSWCCA 47
- Lloyd v The Queen [2022] NSWCCA 18
- Mills v The Queen [2017] NSWCCA 87
- Nabalarua v The Queen [2020] NSWCCA 68
- Prince v The Queen [2020] NSWCCA 268
- R v Columbus [2007] QCA 396
- R v Eliadis [2017] ACTSC 193
- R v Qutami (2001) 127 A Crim R 369
- R v Verdins (2007) 16 VR 269
- Stevens v The Queen [2009] NSWCCA 26