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District Court 8 February 2023

R v Boyle

[2023] NSWDC 57

Fraud & dishonesty
CRIME RELEVANT FACTORS ON SENTENCE FRAUD ON STATE COVID PAYMENTS COMMITTED IN CUSTODY ACCUMULATION TOTALITY

Citation: R v Boyle [2023] NSWDC 57
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Haesler SC DCJ

Background

The offender had been sentenced by the same judge in February 2022 for a series of serious offences, receiving a term of six years and six months with a non-parole period of four years and six months. He had a lengthy criminal history marked by deprivation, drug use, mental illness, and trauma. The sentencing judge had previously acknowledged that this background reduced his moral culpability to some degree.

While in custody following his arrest in December 2020, the offender provided his personal information to a co-offender, who used it to fraudulently claim COVID-19 emergency relief grants from the State Government. The offender received $400 into his prison bank account and intended to use further funds toward a business venture after his release. A total of $10,500 was lost from the relief fund as a result of the fraud. His then-partner was involved in a similar scheme, and a related Form 1 matter concerned him arranging for two associates to provide their identity information to the same co-offender for further fraudulent claims.

The two principal offences were charges of dishonestly obtaining a financial advantage by deception under section 192E(1)(b) of the Crimes Act 1900, each carrying a maximum of ten years imprisonment. The matter was transferred from Nowra District Court to Wollongong District Court to be dealt with by the same judge who had sentenced the offender in February 2022.

  • What sentence was appropriate for two counts of dishonestly obtaining a financial advantage by deception, committed while the offender was in custody?
  • How should the Form 1 offence of dealing with identity information to commit an indictable offence affect the sentence?
  • What weight should be given to the offender's guilty plea, subjective circumstances, and prospects of rehabilitation?
  • How did parity considerations apply given the co-offenders were dealt with in the Local Court?
  • How should the new sentence be accumulated on the existing sentence, having regard to totality?
  • Was a compensation order to Service NSW appropriate?

Decision

Objective seriousness. The District Court found the offending was a serious example of its type. There was planning, the offender acted with others, and he sought a benefit to which he was not entitled. The loss of $10,500 from a fund intended for genuinely needy people was treated as an aggravating feature. The court moderated the objective seriousness somewhat because the amount was relatively small compared to many section 192E matters.

Form 1 matter. The court took the identity information offence into account but treated it as falling at the very bottom of the range for such offences. The offender had not misappropriated someone else's identity without consent; he had arranged for others to provide their own information for fraudulent use. The court declined to increase the sentence significantly on this basis, noting that doing so would risk double-counting conduct already factored into the assessment of planning and objective seriousness.

Guilty plea and parity. The offender received the full 25% discount for his early guilty plea under section 25D of the Crimes (Sentencing Procedure) Act 1999. On parity, the court noted that the co-offenders were dealt with in the Local Court, where sentencing powers are capped. The court took into account that, absent the existing head sentence, the matter could itself have been resolved in the Local Court, and treated that as a moderating factor in the interests of fairness.

Rehabilitation and totality. The court gave significant weight to a psychologist's updated report, which noted the offender's increased motivation, engagement with Narcotics Anonymous, continuation of Buprenorphine treatment, and imminent commencement of the Violent Offenders Therapeutic Program. The court expressly observed that an overly severe additional sentence risked deepening the offender's institutionalisation and undermining the rehabilitative steps he had begun to take. The new sentence was structured with a short non-parole period and an extended parole period to maximise post-release supervision, reflecting a finding of special circumstances.

Orders Made

  • Sentence of imprisonment of one year and ten months, commencing 7 June 2025 and ending 7 December 2025 (resulting in an additional six months in custody beyond the existing sentence).
  • Non-parole period of six months, expiring 6 June 2026.
  • Parole period of one year and four months to follow.
  • Compensation order of $8,500 to Service NSW on behalf of the State of New South Wales, pursuant to Division 2 of the Victims Support and Rehabilitation Act 1996, payable within 28 days to the Registrar of the District Court at Wollongong, enforceable as a civil debt.

Note: The judgment text records the sentence commencement date as "7 June 2000," which appears to be a transcription error for 2025, consistent with the remainder of the sentence calculation.

Key Takeaways

  • Offending committed while in custody is an obvious aggravating factor, but the District Court recognised that where an offender's history demonstrates that imprisonment has never operated as a deterrent, that fact does not eliminate the need for proportionate punishment, though it remains relevant to the overall sentencing exercise.
  • A sentence that is disproportionately severe may increase rather than reduce the risk an offender poses to the community upon release, particularly where the offender is already deeply institutionalised. This principle, drawn from Veen v R (No 2), shaped both the length of the additional term and the structure of the parole period.
  • Parity between co-offenders sentenced in different courts requires careful attention. Where one offender is brought to the District Court because a higher penalty is warranted, the court nonetheless considered the Local Court's sentencing ceiling as a moderating factor in fairness to the offender.
  • Form 1 matters will not necessarily produce a significant increase in sentence where the additional offending sits at the very bottom of its range and the relevant conduct has already been reflected in the assessment of objective seriousness of the principal offence.
  • A compensation order under the Victims Support and Rehabilitation Act 1996 was made in favour of Service NSW, reflecting the court's capacity to recognise the State as a victim of fraud on public relief funds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192E(1)(b), 192J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 58
- Victims Support and Rehabilitation Act 1996 (NSW), Division 2

Cases
- R v Boyle [2022] NSWDC 4
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Gordon v R (1994) 71 A Crim R 459
- R v Clinch (1994) 72 A Crim R 301
- MAK v R [2006] NSWCCA 381