R v Roberts [2021] NSWDC 736

District Court New South Wales

Medium Neutral Citation: R v Roberts [2021] NSWDC 736 Hearing dates: 25 May 2021 Decision date: 26 May 2021 Jurisdiction: Criminal Before: Bright DCJ Decision: Orders at [93] Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: R v Edwards (1996) 90 A Crim R 510 Category: Sentence Parties: Regina (Crown) Narelle Elizabeth Roberts (Accused) Representation: Mr J Clements (Counsel for Accused)

Ms S Maine (Solicitor Advocate for Crown) File Number(s): 2019/00397847

Judgment 1. HER HONOUR: The appellant Narelle Elizabeth Roberts, 47 years of age, appeals against the severity of a sentence imposed at the Gosford Local Court on 8 April 2021 in respect of one offence of dishonestly obtain financial advantage or cause disadvantage by deception, an offence pursuant to s 192E(1)(b) of the Crimes Act. 2. The appellant was sentenced to twelve months imprisonment with a non-parole period of six months. The offending occurred between 13 June 2017 and 11 April 2019. I note that during the hearing of the appeal I granted leave to the Crown to amend the court attendance notice. Ultimately, that amendment was made by consent. 3. The sentence was to date from 8 April 2021, the date it was imposed. On that date the appellant was granted appeals bail and, in those circumstances, she has spent no time in custody in relation to the offending. 4. The maximum prescribed penalty for the offence is two years imprisonment and/or a fine of $11,000. 5. The appellant pleaded guilty on the day of the hearing in the Local Court. In those circumstances, she received a 10 per cent discount for the plea. 6. The facts in relation to the offending are as follows. Between April 2017 and April 2019 the appellant held the position of secretary and treasurer of the Gosford Stingrays Swimming Club. The position of secretary and treasurer are non-paying jobs and are done on a voluntary basis. The Gosford Stingrays Swimming Club held a bank account with the National Australia Bank. The Club's accounts were paid by cheque which required two signatures for the cheque to be processed. 7. The authorised signatories were the appellant, Nerida Uljan and Linda Cuthbert. Ms Cuthbert had ceased to be involved in the Club since April 2017 and had not signed a Gosford Stingrays Swimming Club cheque since leaving the Club. Ms Cuthbert's signature was not removed from the bank's signatory list. 8. In April 2019 the Club became aware that a cheque had bounced and became concerned about the handling of the Club's accounts. The Club president, Mr Owens, requested that the appellant issue another cheque to replace the one that had bounced. Mr Owens said that he had to make several requests to the appellant before the new cheque was issued. 9. In April 2019 an extraordinary meeting was called by Mr Owens and the appellant was removed from the position she held as the Club's treasurer and secretary. The new treasurer commenced actions looking into the Club's finances and also changing banking institutions from the National Australia Bank to the Greater Bank. During this process, it was found that there were nine cheques which appeared to be fraudulent, totalling $15,153.70. All the cheques were attached to the Gosford Stingrays Swimming Club National Australia Bank account. 10. Police successfully applied for a court order requesting that the National Australia Bank produce each of the cheques and the account to which these funds were transferred. Documents received from the National Australia Bank showed that this appellant was the beneficiary of the nine cheques. Also discovered during the audit, was that a term deposit held by the Gosford Stingrays Swimming Club in an amount of $7,131.36 had been closed by the appellant. 11. All the cheques used by the appellant and the application to close the term deposit appeared to have been co-signed by either Nerida Uljan or Linda Cuthbert. Police requested each of those persons to attend Gosford Police Station and make a statement verifying that the signatures on the cheques and the application for the term deposit were actually signed by them. 12. On 16 December 2019 Uljan attended Gosford Police Station and viewed six cheques. Of those cheques she was adamant that she did not sign two of them, although it appeared that someone had attempted to copy her signature. She said that she had mistakenly signed blank cheques that Roberts had given to her in relation to another three of the cheques. 13. On 16 December 2019 Ms Cuthbert attended Gosford Police Station and viewed three further cheques and also the application to close the term deposit. Of these she was adamant that she did not sign any of the cheques or the application for the closure of the term deposit. 14. She mentioned to police that the appellant had made a few payments back to the Gosford Stingrays Swimming Club on her own accord, but no agreement was entered into between the Club and the appellant. 15. About 10.45am on 18 December 2019 police attended the Hunter Sports School at Gateshead which is the place of employment of the appellant. Police spoke to the appellant and introduced themselves. Police informed her that she was under arrest and that she was going to be taken to Belmont Police Station where she would be offered an interview before being charged with fraud. She was cautioned by police whilst she was at the school. 16. Once at Belmont Police Station the appellant participated in an interview. During the interview she made admissions to writing nine cheques belonging to the Gosford Stingrays Swimming Club for her financial benefit, though she did mention that she had used her own money to pay for Swimming Club items and she was part reimbursing herself. 17. The appellant said that she had not previously produced proof of this reimbursement to the Swimming Club when she was first approached by Club committee but had documents to support the claim. 18. When asked the appellant made admissions that she forged the signature of Linda Cuthbert to close the term deposit in the Gosford Stingrays Swimming Club name before transferring the $7,000 into the Club account and then writing cheques in her own name for her benefit. 19. As I indicated the total amount of cheques written, that is the nine cheques, was to the value of $15,153.70. 20. The appellant told police that she had made attempt to repay the funds that she had fraudulently obtained but was unsure of the amount she had returned. The effort to repay the money was only made when the committee members of the Club confronted her. 21. Those facts disclose serious objective criminality. The funds were obtained from a sporting organisation where the offender was undertaking a voluntary position. On multiple occasions the offender forged signatures on cheques and also on a document to release a term deposit. The offending cannot be described as opportunistic or spontaneous and did involve some planning. 22. The amount involved, as I indicated, as just over $15,000. I expect that was not an insignificant amount for voluntary sporting association. There is no question that both general and specific deterrence are important considerations on sentence. Sporting organisations and other community organisations depend on the honesty of people who are in voluntary roles to ensure that the clubs can continue to run. I have no doubt that the offender's conduct would have caused very significant financial stress for the organisation. 23. As I indicated the appellant is now 47 years of age. She has a criminal history commencing in 1996 when she was 22 years old. She had been charged with 11 counts of obtain benefit by deception. She was placed on a recognizance for three years. She was also charged with two further counts of intent to obtain financial advantage by force or misleading statement. She was fined in respect of each of those matters. 24. In 2014 when she was 40 years of age she was charged with an offence of dishonestly obtain financial advantage by deception relating to 48 attempts. In respect of that matter she was sentenced to a community service order for 100 hours. She appealed against the severity of that sentence and the order was varied so she was placed on a s 9 bond for two years. There were no conditions of the bond other than the standard conditions. 25. Most recently on 31 January 2017 the appellant was dealt with at the Gosford Local Court for four offences of dishonestly obtain financial advantage by deception. In respect of each of those matters, the appellant received the same sentence, that is an intensive correction order. It was an aggregate sentence for 18 months to date from 18 August 2017 and to expire on 17 February 2019. There was also a compensation order made in the amount of $37,455. 26. The appellant appealed against the severity of that sentence to the Gosford District Court on 30 January 2018. The appeal was dismissed because the appellant did not appear to prosecute the appeal. On 16 April 2018 the matter was re-mentioned before the Gosford District Court and it was listed for hearing of an application to reinstate the appeal. The matter came before the Court again on 26 April 2018. On that occasion leave to appeal was granted. The appeal was dismissed and the intensive correction order for 18 months was confirmed. 27. That Intensive Correction Order related to offences that had occurred in 2014, that is between June and October 2014. The appellant had been charged on 12 October 2016. That is, some eight months before the timeframe of the current offending. 28. Having regard to the appellant's criminal history, it disentitles her to any leniency on sentence that would otherwise be available to a person of good character. Also, because all her previous offending has been of the same type it means that specific deterrence is an important consideration. 29. When the matter was before the Local Court the Magistrate had the benefit of a psychological report prepared by clinical psychologist Ms Wojceichowski. The psychologist had a face to face assessment with the appellant on 25 February 2021, an appointment for treatment was then arranged. The assessment session lasted approximately 50 minutes. The psychologist provided a detailed report in relation to that assessment. 30. The appellant provided the following account of her background. In relation to her current circumstances she said she was a head teacher of English literature and language at a Newcastle selective high school and she was currently studying a Masters of Education policy at Sydney University. 31. She has three daughters aged 20, 19 and 16. Her eldest daughter lives in Canberra and her two other daughters aged 19 and 16 live with her. Her middle daughter is attending the University of Sydney and the youngest daughter is undertaking a hospitality apprenticeship and is training to be a dance teacher. 32. The appellant reported to the psychologist that her parents, most particularly her mother, was physically abusive towards her during her childhood and also her mother used alcohol excessively. 33. She said that she began a relationship with the father of her three children when she was 17 years of age, they married when they were 22 years of age and that marriage lasted until she was 34 years old, which was 2008. She described to the psychologist that the relationship was characterised by coercive control. She described continual physical threats to herself and her children, that the marriage was marred by excessive use of alcohol and anger and the abuse included sexual demands, psychological insults and control of her social and family support networks and also her finances. 34. She described that her husband had threatened either to kill the children should she leave him or kill both her and the children. Alternatively, he threatened to have the Family Court remove the children from her care in order that he could alienate them from her. She separated from her husband after a domestic violence incident in 2008. 35. The appellant reported that she is still afraid of her ex-husband because he is continually blaming her for everything that goes wrong in his life. She described that despite the 11 years since their separation the conflict continues and the lives of her three children have been impacted by that conflict and ongoing threats. She described that her ex-partner frequently messages her in the early hours of the morning with threats and derogatory messages. 36. She gave evidence during the hearing of the appeal that there has been none of that behaviour for the past 12 months. 37. The appellant described that she entered a new relationship which also ended badly in 2016 when her partner required her and her children to leave the home in respect of which she was mostly paying the rent. She described that relationship as financially costly because her new partner had a gambling problem. 38. The appellant described herself as a highly successful school student during her childhood and, after separating from her husband, she enrolled at university in order to become a teacher. It was her intention to be able to provide financially for herself and her daughters. She reported that she excelled at university and accepted her first teaching role in 2013. 39. She described that she has been continuously promoted and is now in her position as a head teacher of English in Newcastle. As I previously indicated, she is also enrolled in a Master's degree. 40. In terms of her financial circumstances the appellant described to the psychologist that whilst her finances have now become easier given her head teacher role, she continues to struggle to pay for her daughter's educational and training expenses, including university text books for the eldest two. In addition, she described rents as expensive and having increased. She indicated her ex-husband owes her some $18,000 in child support and she has a HECS debt of $13,500. 41. The psychologist conducted a number of tests and indicated that the results were in the moderate range for depression and anxiety and also were indicative of post traumatic stress disorder. The psychologist stated as follows: "The configuration of the clinical scale suggest a person who is tense, angry, unhappy and emotionally labile. The respondent appears to be presenting in a state of crisis and marked distress, although this could be attributed to her legal status and impending sentence hearing." The psychologist continued: "Ms Roberts describes a personality style that is consistent with a number of antisocial character features, however it is unclear if these features are the result of her consistent need for the survival of herself and her children. She appears to have little regard for others or the opinions of society and again this may be due to her perception of having the odds stacked against her in terms of her ability to financially maintain and house herself and her children and the long term threats of Family Court litigation." 1. In relation to the appellant's attitude to the offending she described her offending to the psychologist as feeling like a "fallback" when she is financially stressed and then it feels like it is an automatic response to stress. 2. The psychologist noted that she deeply regrets her reliance on the offending to maintain her children and she did report to the psychologist that she was paying the funds back when she was apprehended. 3. I note on several occasions, not only during the report, but also during evidence the appellant emphasised that she was paying the funds back. 4. It is clear to me that, and I seriously doubt whether, the appellant even today understands that her behaviour is seriously criminal. She seems to be treating the funds like a loan. 5. In relation to the mental health of the appellant the psychologist diagnosed her as suffering from post-traumatic stress disorder and a major depressive disorder, a single episode possible linked to the current legal proceedings. 6. In relation to whether there was any antisocial attitude of the appellant the psychologist noted as follows: "Ms Roberts appreciates that she has wronged society and regrets her offending. However, she believes that she and her daughters are disadvantaged in a world where men set the rules and decide who conforms with the rules." 1. The psychologist assessed the appellant as a low to medium low risk category of further offending. I do note that she did not have access to the appellant's criminal history. She recommended that the appellant continue to engage in ongoing psychological treatment. 2. The Court also had the benefit of a Sentencing Assessment Report. In the Sentencing Assessment Report the appellant also claimed that she was always intending to repay the "debt" once she received financial support from her ex-husband. Again, the reference to repaying a debt in my view shows very limited insight into the criminality of the offending behaviour. 3. The appellant claimed that she had repaid $4,500, however she ceased paying at the request of the director of the organisation. 4. In terms of an explanation for the offending, the appellant indicated that due to her most recent relationship breakdown and the lack of support from her children's father, her financial affairs were unmanageable. 5. The author of the Sentencing Assessment Report also assessed the offender as a low risk of reoffending. Again, in my view that is somewhat surprising given the appellant's criminal history. 6. The Court also had the benefit of a letter prepared by the appellant dated 7 April 2021. The appellant indicated that she would like to express "categorically how sorry I am for my actions". She acknowledged that she would have caused stress and a burden on the Swimming Club and that her actions would have caused "extensive problems" for the Club. She also acknowledged that this was not the first time she had acted dishonestly to gain a financial benefit. 7. She then continued as follows: "Whilst they appear to be three separate acts they are all connected in a period where I was experiencing financial distress coupled with extensive and exhaustive emotional turmoil, although I do not by any measure wish to minimise my fault in this matter." 1. She then described how she had for a decade worked to provide for her three daughters after she separated from their father. She described the degree of financial manipulation that was characteristic of that relationship. Again she reiterated as follows: "I always planned to return the money". She described that the use of the money was to pay rent, utilities and even food during a period when she waited for child support from her ex-husband. 2. She then described the mental health issues in relation to her daughters, both past and present mental health issues. Firstly, in relation to her eldest daughter who is now 20. She described that she has extreme anxiety that was accommodated during her HSC. That daughter is currently studying in Canberra and is continued to be supported by the appellant. 3. In relation to her middle daughter who is studying psychology at Macquarie Uni, she also described that her middle daughter throughout 2017 was treated for extreme anxiety and depression culminating in a suicide attempt. Her treatment continued throughout 2018 and 2019 and there was an issue in relation to an alleged incident at the Gosford Stingrays Club. 4. In relation to her youngest daughter the appellant described that she is being treated for clinical depression, severe, from 2019 to today and that is through the Read Clinic and I will say more about that in a moment. There is further evidence in relation to her youngest daughter. She described that her youngest daughter lives with her at home and does experience extreme post- traumatic stress disorder symptoms. 5. In her letter to the court she described that she understood she had repaid $3,500. She then also made enquiries with the Club to try and confirm amounts she had paid on behalf of the club from her own finances. She thought in the vicinity of $2,500 or $3,000. 6. Finally she told the Court as follows: "I regret wholeheartedly my actions and I believe that with the support I am receiving from my psychologist I can address the issues that have caused me to offend. I also have been receiving financial management support from the Niagara Park Community Centre since the middle of 2019, a service that is helping me to learn how to manage bills, housing and all my various expenses." 1. The Court also had the benefit of a reference prepared by Nicky Ladas dated 7 April 2021. Ms Ladas had met the appellant when they were teachers in the same English faculty, in 2014. Since that time they have remained good friends. In 2020 they worked together as head teachers. 2. The appellant was described as: "A fantastic educator who always places the wholistic care of her students first. She is the kind of teacher who students know is always there for them and many credit her with being the one teacher that keeps them coming to school." 1. In relation to the appellant's youngest daughter the Court had the benefit of a letter from Kristen Donaghey from the Read Clinic. That letter was dated 22 December 2020. That letter confirmed that the appellant's youngest daughter had been attending psychological counselling for anxiety and depression symptoms since September 2019. The letter stated as follows: "[Alyssa] presents with extremely elevated anxiety symptoms at the current time and is exacerbated by thoughts of self-harm and suicide. A referral to a psychiatrist for medication review has been sought and we're having regular meetings to support [Alyssa] with strategies to manage her symptoms." 1. There was further evidence tendered during the hearing of the appeal (Exhibit 2) in relation to the appellant's younger daughter and that related to a consultation that had been conducted on 29 April 2021. It was noted that at that stage she had reported a significantly low mood and had described experiencing distressing thoughts regarding risk. It was then suggested that for a period of time there be weekly appointments to manage those issues. 2. The appellant also gave evidence during the hearing of the appeal. She confirmed the mental health issues in relation to each of her daughters. She describes how she is constantly caring particularly for her daughter and is vigilant in relation to her welfare. She also confirmed her own family background and the issues of her previous two relationships. 3. She elaborated in relation to the circumstances in which she offended as that offending appears on her criminal history. She said the 1996 offending was before she was married and she was working in retail and had access to a credit card which she used because she had no money of her own. The offending in 2014 relating to 48 attempts to dishonestly obtain property by deception related to an insurance claim where 48 items were claimed falsely. 4. The further offending between June and October 2014 in respect of which she received an intensive correction order related to claims made through health insurance. She again reiterated that the money was used to pay for rent and electricity and occurred at a time when she was with her second partner. 5. The appellant told the Court that she has taken a number of steps towards her own rehabilitation, most particularly she has sought the assistance of a financial counsellor at Narara Valley. She sees them regularly every three months. She has a budget to follow and she is accountable. She is also continuing to see her psychologist Ms Wojceichowski and working with her through past trauma. She now sees her every fortnight. 6. She was asked how she could assure the Court that she would not reoffend. She said she now is more accountable, both financially and also in terms of her mental health. She also has no contact with her daughters' father. She says all those steps were not in place before her current offending. 7. She was asked about the offending in cross-examination. She said she had been a treasurer of the Club for five to six years. She accepted that the Club did have very limited financial resources. She was asked about forging the signatures of the two persons associated with the Club. She said "I was just trying to keep my girls protected". Again, she reiterated in evidence as follows "I always planned on giving the money back". 8. She agreed she knew her behaviour was wrong at the time. She was asked what she regretted about her behaviour. She said she regretted doing it and not seeking help for herself and taking steps towards her rehabilitation earlier. 9. It was submitted on behalf of the appellant that the offending was objectively serious and that it was at the mid-range. I accept that characterisation of the offending. 10. Ultimately, it was submitted that the sentence could properly be served by way of an intensive corrections order where the focus would be upon the appellant's rehabilitation in respect of which she has taken a number of steps. 11. It was also submitted that the Court could take into account the hardship to the appellant's daughters, especially her youngest daughter who has significant mental health issues which would be exacerbated if she was incarcerated. 12. The Crown relied upon the following factors with respect to the objective seriousness of the offending. Firstly, that it was a small club with limited resources, there were nine cheques that were used to defraud the Club, the appellant was in a position of trust and there was a degree of planning and premeditation, that is each cheque had to be forged before the benefit could be paid to the appellant. 13. The Crown also submitted that there were multiple transactions and the loss would have been substantial. It was acknowledged by the Crown that the appellant had expressed her remorse and had pleaded guilty before the hearing which should be taken into account. 14. Having heard the evidence of the appellant, I am satisfied she has reasonably good prospects of rehabilitation. She has now engaged with mental health treatment and is committed to addressing her underlying issues. She is also engaging in financial counselling. At this stage, I cannot find she is unlikely to reoffend given her past criminal history. 15. Hardship to third parties 16. Whilst I accept that there will be hardship for the appellant's daughter should the appellant be incarcerated, I am not satisfied that such hardship can be regarded as exceptional as that term is understood as a matter of law. 17. The general principle is that hardship to a family member is an unavoidable consequence of a custodial sentence and it is not a mitigating consideration unless such hardship is wholly, highly or truly exceptional. In R v Edwards Gleeson CJ described it in the following way: "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of imprisonment." 1. It is only where the circumstances are highly exceptional and where it would be inhumane to refuse to do so that hardship to others in sentencing can be taken into account. It is for those reasons that I have found the hardship is not exceptional. 2. In considering whether the sentence can be served by way of an Intensive Correction Order, I have considered s 66, Crimes (Sentencing Procedure) Act. Section 66(1) provides that community safety is the paramount consideration when the Court is considering whether to make an intensive correction order. Subs (2) requires the Court to assess whether making the order or serving the sentence by way of full time detention is more likely to address the offender's risk of reoffending. Subs (3) requires the Court to also consider the provisions of s 3A the purposes of sentencing and any other relevant common law sentencing principles. 3. Whilst I accept that the offender's risk of reoffending would more likely be addressed should the sentence be served in the community, I consider that the need for punishment, denunciation, specific deterrence of the offender and general deterrence of others who may be so inclined to act, warrant the imposition of a fulltime custodial sentence. 4. Accordingly, my formal orders in relation to the appeal are as follows. The appeal is dismissed. 5. I confirm the conviction. 6. I confirm the orders of the Magistrate being a total term of imprisonment of twelve months to date from 26 May 2021 and expire on 25 May 2022 with a non-parole period of six months to date from 26 May 2021and expire on 25 November 2021.