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District Court 11 August 2023

R v MARTINO

[2023] NSWDC 308

Fraud & dishonesty
RISK OF RE OFFENDING LIMITED GENUINE REMORSE TOTALITY SPECIAL CIRCUMSTANCES

Citation: R v Martino [2023] NSWDC 308
Court: District Court of New South Wales
Date: 11 August 2023
Judge(s): Noman SC DCJ

Background

The offender, a 47-year-old man with a criminal history spanning nearly three decades, appeared for sentencing on one count of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW). The principal offence involved deceiving CBUS superannuation into rolling over $50,000 from the account of a real person who shared the offender's surname into a self-managed superannuation fund the offender controlled. The offender had impersonated the victim using identification documents including a driver's licence, a Medicare card, and an unwitnesed statutory declaration.

A second, related offence involving a further $8,005.37 obtained from the same victim by the same means was taken into account on a Form 1 (a procedure that allows additional offences to be considered at sentencing without separate conviction). Both offences were committed in late 2016 and early 2017 while the offender was serving a custodial sentence for other fraud offences.

The offender had a lengthy criminal history in both New South Wales and Victoria, including numerous fraud and dishonesty offences dating back to 1994, and had previously received a range of sentences including terms of imprisonment. At the time of sentencing, he was serving a further sentence for separate but temporally overlapping fraud offences.

  • What was the appropriate head sentence and non-parole period for a moderately serious fraud committed while the offender was in custody?
  • What weight should be given to the offender's guilty plea, given it was entered after the matter had been listed for trial?
  • Whether the offender's mental health diagnoses, claimed childhood abuse, and personal circumstances reduced his moral culpability.
  • Whether the offender demonstrated genuine remorse.
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.
  • Whether an Intensive Correction Order (ICO) was appropriate, or whether full-time imprisonment was required.
  • How the totality principle should be applied given the offender was already serving a sentence for similar offending.

Decision

The court assessed the offending as moderately serious. While the scheme was planned and required some ingenuity, particularly given it was executed while the offender was in custody, it lacked particular sophistication and the amounts involved, though not insignificant, were at the lower end of what the provision covers. The maximum penalty of 10 years imprisonment operated as a legislative guidepost for assessing seriousness.

The court allowed a 10% reduction in sentence to reflect the guilty plea, though it noted the Crown case was strong and the plea did not, of itself, indicate remorse. The court found the offender to be an unreliable historian, noting material inconsistencies in accounts he had provided to various courts, practitioners, and experts across multiple proceedings. Because of those inconsistencies, the court was unable to accept the accuracy of the background history and declined to find that his personal circumstances, even if taken at face value, reduced his moral culpability.

On remorse, the court found it to be limited and not genuine. The offender had written to the court offering to repay the stolen funds and filed two statutory declarations to that effect, but no payment had been made. Given the offender's proven willingness to swear false statutory declarations, the court placed little weight on those declarations as evidence of remorse.

The court found special circumstances existed, relying on the offender's need for extended supervision and his health issues, justifying a departure from the standard non-parole period ratio. Full-time imprisonment was the only appropriate penalty. An ICO was not considered suitable given the length of the sentence. The court applied the totality principle by backdating the sentence to account for two months spent solely on remand and by applying a further two-month reduction, ensuring the overall combined sentence remained proportionate.

Orders Made

  • The offender was convicted of one offence of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), with a further offence taken into account on the Form 1.
  • Sentence imposed: 2 years and 9 months imprisonment, with a non-parole period of 1 year and 8 months.
  • Sentence backdated to commence 21 May 2023, with the non-parole period expiring 20 January 2025 and the full term expiring 20 February 2026.
  • The non-parole period represents approximately 60% of the head sentence, reflecting the finding of special circumstances.
  • The overall combined sentence (with the existing sentence) resulted in an aggregate term of 3 years and 2 months with an overall non-parole period of 2 years and 1 month (an overall ratio of approximately 65%).

Key Takeaways

  • Committing a fraud offence while serving a custodial sentence for other fraud offences is an aggravating feature that the District Court treated as demonstrating both ingenuity and an entrenched pattern of offending, rather than as a mitigating circumstance.
  • Psychiatric diagnoses including PTSD, major depressive disorder, and antisocial personality disorder did not, in this case, reduce moral culpability or lessen the importance of personal and general deterrence, particularly where the court could not reliably assess the accuracy of the offender's self-reported history.
  • Offers to make restitution carry little weight where they remain unfulfilled and are made by way of statutory declaration from an offender with a demonstrated history of swearing false declarations.
  • A guilty plea entered after a trial date had been listed but subsequently vacated attracted only a 10% discount, and the court was explicit that a strong Crown case meant the plea did not, of itself, signify remorse.
  • Where an offender is already serving a sentence for temporally connected but unrelated offending, the totality principle requires the sentencing court to consider the combined effect of all sentences, and may be given effect through backdating rather than by reducing the head sentence below what the individual offending warrants.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly obtaining a financial advantage by deception; maximum penalty 10 years imprisonment)

Cases:
- Sentencing remarks of Judge Sweeney (unreported) regarding the offender's 2018 offending
- Court of Criminal Appeal judgment regarding the offender's 2010 sexual assault offending (unreported; referred to in the judgment but not formally cited)
- Guideline judgment on Form 1 procedure (referred to but not identified by name in the provided text)