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District Court 23 May 2025

R v Hosking

[2025] NSWDC 187

Fraud & dishonesty
SENTENCING POWERS OF COURT PENALTIES INTENSIVE CORRECTION ORDER (ICO) MITIGATING FACTORS HARDSHIP TO A THIRD PARTY

Citation: R v Hosking [2025] NSWDC 187
Court: District Court of New South Wales
Date: 23 May 2025
Judge: Buscombe DCJ

Background

The offender pleaded guilty to a single charge of dealing in proceeds of crime under s 193C(1) of the Crimes Act 1900 (NSW). The charge related to transactions totalling $1,091,545 conducted between September 2016 and January 2020, involving proceeds of fraud committed by her then-husband, the co-offender.

The co-offender ran a series of fraudulent schemes, deceiving victims into advancing loans or investments by falsely representing that his businesses were profitable and viable. He then used those funds almost immediately for personal expenses and gambling. The offender was a director of several companies and managed bank accounts into which those proceeds flowed, including her own personal accounts. She did not personally participate in the deception of victims but received the funds and managed the accounts through which they passed.

The co-offender had separately pleaded guilty and been sentenced for multiple counts of dishonestly obtaining financial advantage by deception and perverting the course of justice. The sentencing of the offender proceeded on agreed facts.

  • Whether the totality of the sentence warranted full-time imprisonment, a suspended term, an Intensive Correction Order (ICO), or a Community Correction Order (CCO)
  • Whether the court had power to impose an ICO where the offender resided outside New South Wales
  • Whether the offender's reduced moral culpability arising from a coercive and controlling relationship with the co-offender constituted a relevant mitigating factor
  • Whether the hardship that would be inflicted on a third party (the offender's dependent daughter) amounted to exceptional circumstances sufficient to displace a sentence of full-time imprisonment

Decision

Buscombe DCJ accepted that the offending was objectively serious, involving just over $1 million in proceeds of crime over more than three years, and noted the offender's lack of remorse. Those factors pointed toward a custodial response. However, the court found that the offender's moral culpability was reduced by the coercive and controlling nature of her relationship with the co-offender at the time of the offending.

The court also found that the hardship that imprisonment would cause to the offender's daughter rose to the level of exceptional circumstances, a higher threshold than ordinary third-party hardship. That finding, combined with reduced moral culpability, led the court to conclude that full-time imprisonment was not the only appropriate penalty.

Buscombe DCJ considered whether an ICO was available, noting that the Crown had submitted it would be appropriate and that the offender had expressed willingness to relocate to New South Wales to enable that option. The court found, however, that s 69(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Sentencing Procedure) Regulation 2024 (NSW) together preclude the imposition of an ICO on an offender who does not reside in New South Wales. The court described this as an "unfortunate situation" and an "injustice," observing that the restriction is incongruous given Australia's federal structure and calling explicitly for legislative or regulatory reform.

With an ICO ruled out as a matter of law, the court imposed a Community Correction Order for a period of 2 years and 10 months, with conditions including a curfew for the first 12 months of the order.

Orders Made

  • The offender is convicted of the offence to which she pleaded guilty
  • The offender is to enter into a Community Correction Order for a period of 2 years and 10 months from 23 May 2025, subject to the following conditions:
  • The offender must not commit a criminal offence
  • The offender must appear before the Court if called upon during the term of the order
  • For the first 12 months of the order, the offender must not be outside her residence between 9pm and 5am, and must present to the door for police checks if required

Key Takeaways

  • Under s 69(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Sentencing Procedure) Regulation 2024 (NSW), a court has no power to impose an ICO on an offender who resides outside New South Wales, even if the offender offers to relocate to enable that outcome.

  • Buscombe DCJ expressly flagged this restriction as unjust and called for reform, either through legislation or regulation, to allow ICOs to be imposed on offenders residing in other Australian states and territories.

  • A finding that an offence was committed in the context of a coercive and controlling relationship is a relevant factor capable of reducing an offender's moral culpability at sentencing.

  • Hardship to a third party, such as a dependent child, can justify departure from a custodial sentence, but the District Court applied a demanding standard, requiring the circumstances to be genuinely exceptional rather than merely significant.

  • Where the agreed facts disclosed that an offender managed accounts and signed company documents through which over $1 million in fraud proceeds flowed, the offending was treated as objectively serious notwithstanding that the offender did not personally deceive the victims.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(1) (dealing in proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 69(3)
- Crimes (Sentencing Procedure) Regulation 2024 (NSW)
- Mental Health and Wellbeing Act (VIC)

Cases
No cases were cited in the text provided.