Citation: R v Hatton [2022] NSWDC 688
Court: District Court of New South Wales
Date: 21 July 2022
Judge: Haesler SC DCJ
Background
The offender had worked for a close-knit family since 2007, initially performing secretarial duties for their plumbing business in the Nowra region. Her role expanded to include access to the family's bank accounts, and she later took on bookkeeping responsibilities for three of the family's adult children, who were professional surfers. She was, in effect, the trusted financial administrator for multiple members of the same family across an extended period.
Over time, the offender used that position to systematically misappropriate funds from five members of the family, including the parents and three of their children. The total amount taken across all offences exceeded $1.5 million. The offending was described as repetitive and calculated, and occurred while the family managed their business remotely after relocating to northern New South Wales.
The offender pleaded guilty in the Local Court to three rolled-up charges of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900, and asked the court to take a fourth related matter into account on a Form 1 (a procedural mechanism allowing a court to take additional uncharged or unsentenced offences into account when imposing sentence on a convicted offence). A compensation application under the Victims Rights and Support Act 2013 was also before the court.
Legal Issues
- What aggregate sentence was appropriate given the nature and scale of the fraud, the number of victims, the guilty plea, any assistance given to police, and other mitigating factors including gambling addiction and prior good character?
- What percentage reductions applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 for the early guilty plea and cooperation with police?
- Whether, and in what amount, a compensation order should be made under the Victims Rights and Support Act 2013, and how the court's jurisdictional maximum of $750,000 should be applied across multiple victims and multiple offences.
- How partial repayments already made to some victims should be reflected in any compensation order.
Decision
On sentencing, Haesler SC DCJ identified the offending as serious. The maximum penalty for each offence was ten years' imprisonment, which the court treated as an important guide to the sentencing discretion. Aggravating features included the substantial breach of trust involved in misappropriating funds from a family that had employed the offender for many years, the significant total loss, the impact on multiple victims, and the calculated, repetitive nature of the conduct. The offender's gambling addiction was noted as context, but the court made clear that general deterrence remained a significant sentencing purpose and that those who steal from those who trust them must be deterred.
Mitigating factors included the early guilty plea, prior good character, some degree of recompense to two victims, assistance provided to police that disclosed previously unknown offending (attracting a percentage reduction in sentence), genuine remorse, and the additional hardship imposed by COVID-19 restrictions in custody. Special circumstances were found to exist, justifying a longer balance of sentence relative to the non-parole period. The indicative sentences reflected a 25% reduction for the utilitarian value of the guilty plea plus further reductions for the s 23 factors, with the court noting it had tried to avoid eroding those discounts through accumulation.
On victim compensation, the court dealt with the Victims Rights and Support Act 2013 application before announcing sentence, noting from experience that offenders often cannot concentrate on subsequent proceedings once a custodial sentence has been announced. The court held that the jurisdictional maximum of $750,000 applied to the total compensation awarded across all offences forming a general course of conduct, consistent with the approach taken in R v David Michael Wills [2013] NSWDC 3. Compensation is akin to civil compensation, and proof on the civil standard applies. The defence argument that losses might be reduced by insurance, tax treatment, or other unidentified means did not prevent an order being made, as the loss was sufficiently quantified in material before the court.
The total compensation ordered was $647,000, apportioned among the five aggrieved persons in approximate proportion to their individual losses. Amounts already paid or in the process of being paid to two victims (approximately $56,000 to one and $47,000 to another) were taken into account in calculating the final figures. The court acknowledged the offender was impecunious and had limited assets, but noted that financial hardship is not a ground for reducing a compensation order, though it was relevant to the sentencing exercise.
Orders Made
Custodial sentence (aggregate):
- Sequence 751 (taking into account Form 1 matter): 4 years 6 months
- Sequence 753: 2 years 11 months
- Sequence 754: 2 years 7 months
- Aggregate sentence: 5 years 6 months imprisonment
- Non-parole period: 3 years, commencing 21 July 2022
- Eligible for parole: 20 July 2025
- Balance of sentence: 2 years 6 months, expiring 20 January 2028
- No pre-sentence custody
Victim compensation (total $647,000), payable within 28 days:
- $326,500 to the first adult child (Sequence 751)
- $262,500 to the second adult child (Sequence 753)
- $20,500 to the third adult child (Sequence 754)
- $18,750 to the father (Sequence 750, Form 1)
- $18,750 to the mother (Sequence 750, Form 1)
Amounts directed to be paid to the Registrar of the District Court at Wollongong for payment to the respective aggrieved persons.
Key Takeaways
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The District Court confirmed that the $750,000 jurisdictional maximum under the Victims Rights and Support Act 2013 applies to the total compensation awarded across all offences forming a general course of conduct, not per offence. This is consistent with the approach adopted in R v Wills [2013] NSWDC 3.
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A compensation order under the Act is assessed on the civil standard of proof and requires a causal connection between the established loss and the offending, following Fagan v Crime Compensation Tribunal (1982) 150 CLR 666. Speculative possibilities of alternative recovery do not prevent the court from making an order where loss is sufficiently quantified.
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Partial repayments already made by an offender, or arrangements in train to make them, must be taken into account in calculating the compensation figure but do not preclude an order being made.
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An offender's impecuniosity and diminished future earning capacity are not grounds to reduce a compensation order, though they remain relevant considerations in the sentencing exercise itself.
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Where an offender discloses previously unknown offending to police, that cooperation can attract a further percentage reduction in sentence beyond the discount for the utilitarian value of a guilty plea, reflecting the specific provisions and principles applied under s 23 of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Victims Rights and Support Act 2013 (NSW), Parts 6 Divisions 1 and 3, ss 97, 98, 102
- District Court Act 1973 (NSW), s 4(1)
Cases:
- Assi v R [2006] NSWCCA 257
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- C'th v Beattie [2017] NSWCCA 301
- DBW v R [2007] NSWCCA 236
- DPP Cth v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Fagan v Crime Compensation Tribunal (1982) 150 CLR 666; [1982] HCA 49
- Johnston v R [2017]