Citation: R v Cole [2025] NSWDC 383
Court: District Court of New South Wales
Date: 19 June 2025
Judge(s): King SC DCJ
Background
The offender was a 52-year-old accounts and inventory employee at Hurford Hardwood Kempsey Pty Ltd, a sawmill and dry mill business in the Kempsey region. She had worked for the company for five years and held a significantly responsible position, manually managing and processing payments to the company's approximately 50 local suppliers and contractors through a payment system called "ProStix."
In February 2023, the offender used her employee ID to register a fictitious contractor named "Kay Coler" in ProStix, entering her own bank account details against the profile. Over the following ten months, she created false log stock entries and false weekly payment lists to generate 15 fraudulent payments to the fake contractor, all directed into her own account, totalling $500,052.42. Shortly before her final day of employment, she changed the bank account details attached to the fake profile in an apparent attempt to divert suspicion.
The fraud was discovered in early 2024 when a group-level audit identified a significant unexplained financial loss. Investigators found no paperwork, invoices, or log deliveries associated with "Kay Coler," and no staff had heard of the contractor. The offender's employee ID linked her directly to the creation and operation of the fraudulent profile. A notice to produce served on ANZ Bank confirmed the payments had been received into the offender's accounts and subsequently dispersed across multiple accounts in her name.
Legal Issues
- The appropriate sentence for 15 counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900, where the total amount obtained was $500,052.42.
- The appropriate sentence for one count of knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900.
- The application of a 25% guilty plea discount following committal for sentence from the Local Court.
- The weight to be given to subjective matters, including the offender's psychological background, personal circumstances, and claimed workplace grievances.
- The application of the principle of totality when arriving at an aggregate sentence across 16 offences.
Decision
The District Court addressed each of the 16 offences by applying indicative sentences reflecting the gravity of the individual fraudulent payments, before considering the aggregate sentence through the lens of totality. A 25% discount was applied to each indicative sentence to reflect the utilitarian value of the guilty pleas entered at committal.
His Honour identified several aggravating features: the offending involved considerable planning and sophistication (including creation of a fake creditor profile, fabrication of inventory and payment records, and last-minute alteration of bank account details to obscure the fraud); it was a sustained course of conduct over approximately ten months; it involved a serious breach of the trust placed in the offender by her employer; and it resulted in a very significant financial loss to the company.
The court acknowledged subjective matters in mitigation, including the psychological report tendered on the offender's behalf. That report described a progressively demanding workplace, expanded responsibilities without additional remuneration, and personal stressors including caring responsibilities. However, His Honour expressly rejected any suggestion that these circumstances justified or sufficiently explained the offending. The court characterised the conduct as motivated by financial gain and a sense of entitlement, noting that while the offender's salary of approximately $60,000 per annum may not have reflected the full weight of her responsibilities, she had agreed to those terms and was not entitled to supplement her income by half a million dollars through fraud.
The court applied the totality principle when arriving at the aggregate sentence, ensuring the overall sentence was proportionate to the totality of the criminality involved across all 16 counts rather than simply the sum of individual terms.
Orders Made
• Total sentence: four years and six months
• Non-parole period: two years and three months, commencing on 19 June 2025
• First eligible for parole on 18 September 2027
• Balance of term: two years and three months, commencing on 19 September 2027 and expiring on 18 December 2029
Key Takeaways
- A sustained course of workplace fraud involving the creation of false records and a fictitious creditor over ten months, resulting in a loss exceeding $500,000, attracted significant weight as an aggravating feature at sentencing, particularly given the breach of the trust inherent in the offender's role.
- Psychological evidence describing workplace stress and inadequate remuneration did not displace the court's finding that the dominant motive for the offending was financial gain; the District Court treated the described circumstances as evidence of a sense of entitlement rather than as a mitigating explanation for the fraud.
- A 25% guilty plea discount applied where the offender was committed for sentence from the Local Court, consistent with the approach in Johnston v R [2017] NSWCCA 53 and the requirements of the Crimes (Sentencing Procedure) Act 1999.
- Where an offender faces a large number of related charges arising from a continuing scheme, the totality principle requires the court to assess the aggregate sentence against the overall criminality, rather than simply accumulating individual terms.
- Under ss 192E(1)(b) and 193B(2) of the Crimes Act 1900, the maximum penalties are ten years and fifteen years imprisonment respectively, with no standard non-parole period applicable to either offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Johnston v R [2017] NSWCCA 53