Regina v Geoffrey Francis Smith [2014] NSWDC 140

District Court New South Wales

Medium Neutral Citation: Regina v Geoffrey Francis Smith [2014] NSWDC 140 Hearing dates: 19 June, 21 August 2014 Decision date: 25 August 2014 Before: Judge MJ Finnane QC Decision: See paragraph [68] Catchwords: CRIME - plea of guilty - sentence - fraud - offence - corporation - fraud whilst officer of body corporate - revenue - misuse of credit card FRAUD - elements of offence - intent to commit fraud - repayment of monies used for private expenses - further commission of fraud OTHER - imprisonment - effect of imprisonment on third parties - mitigating factors - health of family member - public opinion and humiliation - humiliation within community - agreed facts - plea bargain Cases Cited: Regina v Cynthia Edwards NSWCCA (1996) 90 A Crim 510 R v Uzabeaga [2000] NSWCCA 381 Marcus Richard Einfeld v Regina [2010] NSWCCA 87 Kenny v R [2010] NSWCCA 6 Regina v Raymond Reginald Williams [2005] NSWSC 315 Regina v Rodney Stephen Adler [2005] NSWSC 274 Thomson v R [2014] NSWCCA 88 Category: Principal judgment Parties: Regina (Crown) Geoffrey Francis Smith (Offender) Representation: Ms S Bowers (Crown) Mr P Strickland SC (Offender) S Kavanagh, Solicitor for Public Prosecutions (Crown) DLA Piper (Offender) File Number(s): 2011/370149

Judgment 1Geoffrey Francis Smith is charged with one offence of cheating and defrauding Sydney Ferries Corporation, to wit whilst being an officer of a body corporate. He pleaded guilty to this offence. The indictment charges an offence commencing in 2006 and concluding in 2009. I have been asked to take into account an offence contained in a Form 1 Schedule of knowingly making a false statement to a shareholder. The statement was a false statement in writing made to the Minister of Transport that a credit card issued to him by Sydney Ferries Corporation, was being used in conformity with promulgated policy.1 2The evidence put before me shows that from the time he became Chief Executive Officer of Sydney Ferries, he used a Government issued credit card to pay large sums to himself for private purposes. 3He commenced to make use of this credit card from 12 September 20062 although he had signed a document in August of that year agreeing that he would not use the credit card for payment of private expenses. He continued to use this card until he was stopped from doing so. 4However, as part of a negotiated plea bargain, the Crown agreed with his lawyers that the charge should relate only to use of the credit card from May 2008, because in June 2008, he repaid all but $23.223 of the amount he had taken by that time, that is the amounts owing up to April 2008. In total a sum of $ 128, 753.084. 5The Crown Prosecutor told me in submissions that the Crown accepted that it could not prove beyond reasonable doubt that the amounts he took before May 2008 were taken fraudulently, because he had indicated to his staff from the beginning that he would repay any moneys obtained by his using the credit card for private purposes. 6The Crown said that he faced sentence only for the fraudulent use of the credit card from May 2008. When I asked why it was that I was given extensive information showing misuse of the credit card between September 2006 and May 2008, the Crown Prosecutor told me that this was background information designed to show that as at May 2008, the offender's financial position was dire and what he did thereafter was clearly dishonest and fraudulent. 7My impression before this was explained on 21 August, was that the Crown was alleging that the offender had been involved in frauds since September 2006, since the indictment charged an offence commited between 11 September 2006 and 27 May 2009. Both the Crown Prosecutor and Mr Strickland SC (counsel for the offender) told me, when I pointed out that despite their claimed plea bargain, the indictment remained unchanged from the time it was first presented against him, that these were just formal dates. It is common when the Crown decides to accept a plea to an offence other than that which is charged, to prepare a fresh indictment and ask the accused to plead to it. That should have been done in this case, and in my opinion, the agreed facts should not have been presented in such a way to suggest criminality for a greater period than was charged. 8I do not accept what counsel for both the Crown and the Offender have put to me. Clearly the September date, as contained on the indictment presented before me in these proceedings, was chosen originally to enable fraud to be alleged from September. It was not chosen as a formal date at all. 9Of course, it is clear that a Judge does not have to accept what the parties agree are the facts5 and I raised with both counsel the question whether I was bound by their plea agreement, since the indictment was not amended and facts were presented consistent with the frauds starting in September 2006. 10However, in the system of justice that applies in New South Wales and indeed, in the whole of Australia, it is entirely a matter for the Crown to decide what offences are prosecuted. If it decides that it will not prosecute what look to be criminal offences, then a Court must accept that decision. As a judge, I can deal only with offences brought before me for sentence. The single count with which he was charged is a 'rolled up' count. It embraces many specific frauds, that could have been charged separately. What the Crown has done is to agree that it will not proceed against him for any matter before May 2008. As they refuse to proceed on the matters before 2008, it follows that I must sentence only for what the offender did from May 2008. I must accept that he committed no crimes before 2008 and must pass sentence on him for crimes committed after May 2008 during a period of approximately ten months. In my opinion, that must affect the sentence I impose.