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Local Court 13 February 2024

R v Del Busso

[2024] NSWLC 4

Theft & property
SENTENCING CRIMES ACT , 156 LARCENY OF A CLERK THE OBJECTIVE SERIOUSNESS OF THE CRIME THE AMOUNT OF MONEY INVOLVED THE SERIOUS BREACH OF TRUST

Citation: R v Del Busso [2024] NSWLC 4
Court: NSW Local Court
Date: 13 February 2024
Judge: Donnelly LCM

Background

The defendant was employed as a receptionist at two branches of a rheumatology practice, Rheumatology Specialist Care, and was responsible for banking duties including cash reconciliation and depositing patient fees. Between September 2019 and February 2020, she systematically stole $35,785 from the Kogarah branch. A further $16,565 was stolen from the Randwick branch in similar circumstances and was placed on a Form 1 document to be taken into account at sentencing.

The thefts involved deliberate manipulation of the banking process. At Randwick, the defendant swapped shifts to gain access to cash takings and, on multiple occasions, contacted patients by phone and message falsely claiming the EFTPOS machine was not working, thereby directing them to bring cash. Bank records showed she made a series of cash deposits into her personal accounts across multiple branches during the period of her employment.

The defendant pleaded guilty to one charge of larceny by a clerk under s 156 of the Crimes Act 1900 (NSW). The employing company sought compensation of $35,785 for the principal offence. The defendant, who resided in Victoria, had delayed participation in a police interview and failed to attend a prearranged meeting with company auditors.

  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) was met, requiring the court to consider whether any alternative to full-time imprisonment existed
  • What weight should be given to the 10-year statutory maximum penalty (under the Crimes Act 1900) compared to the Local Court's jurisdictional sentencing limit of 2 years, following Park v The Queen (2021) 273 CLR 303
  • How the Form 1 offence (the Randwick theft) should affect the sentence for the principal charge
  • Whether an Intensive Correction Order (ICO) was available given that the defendant resided in Victoria

Decision

The magistrate found that the s 5 threshold was clearly met and that full-time imprisonment was the only appropriate sentencing option. The objective seriousness of the offending was high, given the significant total amount stolen, the sustained period of offending (which ceased only upon detection), the deliberate deception of patients, the planning involved, and the serious breach of trust arising from the defendant's position of responsibility over client funds.

On the question of the applicable maximum penalty, the magistrate applied Park v The Queen, confirming that the Local Court's jurisdictional ceiling of 2 years plays no role in the initial sentencing task. The sentencing exercise must be conducted by reference to the 10-year statutory maximum for larceny by a clerk, with the jurisdictional limit becoming relevant only if the sentence determined exceeds it.

The magistrate treated the Form 1 Randwick offence as a factor that increased the sentence for the principal charge, consistent with the guideline established in the Attorney General's Application No 1 of 2002. Mitigating factors, including the defendant's age, guilty plea, lack of prior criminal history, and some degree of contrition, were taken into account.

An ICO was not available because, under s 69(3) of the Crimes (Sentencing Procedure) Act 1999, such an order cannot be made where the offender resides in a state not declared an approved jurisdiction. Victoria has not been declared an approved jurisdiction, so the court was prohibited from imposing an ICO. The magistrate sentenced the defendant to 20 months' imprisonment with a non-parole period of 12 months, finding special circumstances based on the defendant's age and rehabilitation needs. On appeal, the District Court reduced the sentence to a fixed term of 5 months' imprisonment.

Orders Made

  • Sentenced to 20 months' imprisonment commencing 13 February 2024 and expiring 12 October 2025
  • Non-parole period of 12 months, commencing 13 February 2024 and expiring 12 February 2025, with eligibility for parole on that date
  • Special circumstances found, based on the defendant's age and need for rehabilitation
  • On appeal, the District Court reduced the sentence to a fixed term of 5 months' imprisonment

Key Takeaways

  • Under Park v The Queen (2021) 273 CLR 303, a Local Court sentencing for an indictable offence must assess the conduct against the full statutory maximum penalty, not the court's jurisdictional limit; the jurisdictional ceiling only becomes relevant if the sentence determined would exceed it.
  • A Form 1 document, admitting guilt to related offences not charged, operates to increase the sentence for the principal offence and is a legitimate factor in the sentencing calculus.
  • Section 69(3) of the Crimes (Sentencing Procedure) Act 1999 expressly prohibits a Local Court from imposing an ICO on an offender who resides in a state or territory not declared an approved jurisdiction by regulation; Victoria falls outside that category.
  • Multiple factors combined to meet the s 5 threshold in this case: a high statutory maximum, sustained and planned offending, serious breach of trust, significant financial loss, and the public interest in general deterrence and denunciation.
  • Sufficient subjective mitigation (guilty plea, youth, no prior history, contrition) led to a reduction from what might otherwise have been a longer term, though it did not displace the need for full-time custody at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 156 (larceny by a clerk)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 69(3)
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Markarian v The Queen (2005) 228 CLR 357
- Stanley v DPP (NSW) [2023] HCA 3; (2023) 296 ALJR 107
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- FL v R [2020] NSWCCA 114
- Power v The Queen (1974) 131 CLR 623
- Totaan v R [2022] NSWCCA 75
- R v Boughen [2012] NSWCCA 17
- Abbas v R [2013] NSWCCA 115
- R v Mungomery [2004] NSWCCA 450
- R v Pantano (1990) 49 A Crim R 328
- R v El-Rashid (unrep, 7/4/95, NSWCCA)