R v Cornell [2013] NSWDC 246

District Court New South Wales

Medium Neutral Citation: R v Cornell [2013] NSWDC 246 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Before: Berman SC DCJ Decision: Referred for assessment as to her suitability to serve her sentence by way on an Intensive Corrections Order. Order compensation be paid to Allianz Insurance Limited Catchwords: CRIMINAL LAW - Sentence after trial - Dishonestly damage property - Hardship to a third person - Distasteful nature of reliance on hardship when offender took the risk that harm would result from her incarceration Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Hiba Cornell Representation: A Robertson - Crown M Breeze - Offender Director of Public Prosecutions File Number(s): 2010/14547

SENTENCE 1HIS HONOUR: On 19 August 2013 Ms Hiba Cornell was found guilty by a jury on one charge of dishonestly damaging property. The maximum penalty for that offence is seven years imprisonment. The charge related to some damage that was occasioned to Ms Cornell's own car. It was scratched all over, one of the headlights was smashed and later the windscreen was smashed as well. The damage was so extensive that the car was written off by Ms Cornell's insurer, Allianz Insurance Limited. She received a payout of the agreed value of the car. 2The only issue at trial was why the car was damaged. There was no dispute as to who had damaged it. The Crown said that it was damaged pursuant to an agreement between Ms Cornell and her son-in-law, Mr Radwan Barbour so that the insurance claim could be made. But the defence case was that Mr Barbour arranged for the vehicle to be damaged, and then damaged it himself as well, because he was angry with Ms Cornell. Clearly, the jury accepted the Crown version. 3The Crown case was largely based on intercepted telephone calls. Police were investigating another matter, or even matters, when they overheard incriminating calls relating to the damage of Ms Cornell's car and the subsequent insurance claim. Although Ms Cornell was careful when she spoke on the phone and was clearly aware of at least the possibility that her calls were being monitored, her husband being a detective in the New South Wales police force at the time, nevertheless on the calls at times there were highly incriminating things said, if not by Ms Cornell, then by others involved in the scheme, less disciplined about saying incriminating things on the telephone. 4The Crown case ultimately, as a result of those telephone calls, was a strong one but without those calls it is unlikely that the offence would have been detected in the first place. That is a factor common to all offences of this type. They are difficult to detect. 5I am to sentence Ms Cornell on the basis that she dishonestly arranged for her car to be damaged intending to receive the agreed value as a payment from the insurance company once the car was written off. The loss suffered by the insurer company was not, as offences of this type go, terribly large and if compensation payments are made will be quite small. The car was insured for something around $26,000. That was the agreed value. After it was damaged and written off it was sold at auction for about $11,500 with some smaller part of that being paid to Allianz. 6Mr Barbour, the man who agreed to damage the car and subcontracted out part of that job has been ordered to pay half of the remaining loss to Allianz and it is conceded by Mr Breeze, who appears for Ms Cornell, that it would be appropriate to order her to pay the remainder. And so the direct costs to Allianz will, if those orders are paid, be quite low. The only loss to Allianz will be a loss of personnel time, people such as insurance assessors and investigators. 7Certainly this was not a major piece of fraud. Indeed, this was one of the matters raised by Mr Breeze as part of the defence at the trial. It is difficult to understand ultimately what motivated Ms Cornell to do what she did. But commit this crime she most certainly did. 8Ms Cornell is a person who has achieved a great deal in her life. There is much that she is entitled to be proud of. She pursued a career, and it was a successful one, in banking and finance and indeed she was employed at the Bank of Queensland at the time of this offence. As well as pursuing a career, she brought up her two children largely on her own. The father of the two children had not a great deal of a part to play in their upbringing and Ms Cornell's second husband, Mr Cornell, for his own reasons, has also played much less of a role in raising Ms Cornell's children than she has. 9Of course, as a result of her conviction, her career in banking and finance is over. I was told that she has not worked since being arrested for this matter many years ago, whether in banking and finance or any other area. Although loss of a career in the finance industry is only to be expected if a person is convicted of an offence of dishonesty like this one, it is part of the punishment that Ms Cornell will undergo, that she will have to give up a career which clearly she enjoyed and was successful at. 10I turn now to really one of the most important factors in assessing the appropriate sentence to impose upon Ms Cornell and I want to say quite clearly and plainly were it not for this factor Ms Cornell would go to gaol full-time. Her offence was serious and, ordinarily, in the absence of the factor I am about to mention, nothing less than full-time custody would be appropriate. Ms Cornell's daughter, Saara, was born with a significant injury. She suffers from sickle cell disease. Regular blood transfusions are required but one of the consequences of the disease has been, in Saara's case, the development of further problems. As a young child she suffered a stroke and is now affected by frontal lobe injury. And in more recent times she has begun to experience seizures, any one of which may be fatal. It is something of an understatement to say that Ms Cornell is Saara's primary carer, indeed in many respects, she is her only carer. Saara's problems are both physical and mental. I do not feel the need, in these public remarks on sentence, to go into the sort of behaviour that Saara exhibits but I will note that it is the sort of behaviour that requires careful and close attention by someone who is willing to look after her. The person who best fulfils that role is of course her mother, Ms Cornell. 11One of the reports I received was from Professor Ho. I want to quote a single sentence from that report, "I can confirm that Saara's sickle cell disease is a serious illness for which sickling crises can precipitate death, hence it is extremely important that she be optimally managed." 12In those circumstances I have no hesitation at all in finding that the consequences to Saara were her mother to be sent to gaol full-time are exceptional. 13I cannot however let this matter pass without making this observation. There is always something distasteful about an offender relying on hardship to a family member as a reason for mitigation of punishment. At the time Ms Cornell committed this offence she knew full well that Saara needed her and that Saara would suffer significantly in the event that she went to gaol. Despite that knowledge, Ms Cornell committed this offence. She, herself, risked her own daughter's wellbeing. Despite that, I will take into account Saara's position in a significant way, so significant that, as I have said, it is the one feature which has stopped me sending Ms Cornell to gaol today. 14This offence could have been dealt with in the Local Court. That is a matter I am obliged to take into account. It came to this Court as part of a larger indictment which included matters which were beyond the jurisdiction of the Local Court. It was then separated off and so the result is that this offence could have been dealt with in the Local Court. 15I must also take into account the principles of parity. Mr Barbour was dealt with in the Local Court on a different charge. He received a s 9 bond. Ms Cornell should not a justifiable sense of grievance when she compares the sentence I impose upon her with the sentence imposed upon Mr Barbour. But there are some differences, not only as regards the charge but also as regards their role in this offence. The evidence would suggest that Ms Cornell was the moving party and it was she who recruited Mr Barbour who then recruited others. 16This is Ms Cornell's first offence. She has a substantial bank of good character on which she is entitled to rely. She has good prospects for rehabilitation. There are some suggestions that this offence occurred during a lengthy period in which Ms Cornell was suffering from depression, anxiety and stress. It has to be said that the material before me today reveals things in her life about which she was entitled to be depressed, anxious and stressed. She is continuing to deal with those aspects of her personality, which makes it of course much less likely that any further offence will be committed. Indeed, part of the reason that I am satisfied Ms Cornell has good prospects of rehabilitation is the sentence that I will ultimately impose upon her. It will act as a deterrent to her against committing further offences in the future. 17Mr Breeze suggested that a s 9 bond would be appropriate. Ms Cornell is not suitable for community service because of her need to care for her daughter so Mr Breeze's fallback position was a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act it being implicit in that submission that if I did impose a period of imprisonment it would be two years or less. Neither a bond under s 9 or a bond under s 12 are appropriate. As I said earlier, these offences are difficult to detect and the principle of general deterrence looms large in sentencing for offences of this kind. And on top of that, it cannot be denied that Ms Cornell must be punished for what she has done. 18Her conduct was seriously dishonest and a bond, whether under s 9 or s 12, would be insufficient to reflect the objective gravity of what she did. A sentence of imprisonment should only be imposed as a last resort. But the circumstances of this case are such that that is the only penalty I consider appropriate. I am satisfied that the period of imprisonment should be two years and I turn now to considerations as to how that sentence should be served. 19I note that the Crown does not suggest that the only available sentencing option to me is an immediate term of imprisonment. In my view, it is appropriate that in the event Ms Cornell is suitable, she be ordered to serve that sentence of imprisonment by way of an intensive corrections order. I will therefore grant bail to Ms Cornell pending ultimate determination of this matter in order that she can be assessed as to her suitability to serve the sentence of imprisonment in the manner I have foreshadowed. 20 This matter will be listed at 2 o'clock on 19 December 2013. Bail is granted to Ms Cornell until that day. And Ms Cornell, it's up to you to make sure that you are assessed by that day so you should not just rely on other people to contact you. If you are not assessed given that lengthy period that I've allowed, then I may have some things to say about your bail. You understand? 21I order that compensation be paid by Ms Cornell to Allianz Insurance Limited.