R v Gould [2019] NSWDC 313

District Court New South Wales

Medium Neutral Citation: R v Gould [2019] NSWDC 313 Hearing dates: 31 January 2019 Date of orders: 31 January 2019 Decision date: 31 January 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [140] Catchwords: CRIMINAL LAW – two counts of dishonestly obtain financial advantage by deception – vulnerable victims – no remorse – no special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Imbornone v R [2017] NSWCCA 144 Ingham v R [2011] NSWCCA 88 Johnston v R [2017] NSWCCA 53 The Queen v Pham (2015) 256 CLR 550 Texts Cited: None Category: Sentence Parties: Regina (Crown) Aruna Gould (Offender) Representation: Counsel: Ms E Nicholson (Crown) Mr M Coroneos (Offender)

Solicitors: ODPP (Crown) Murphy's Lawyers (Offender) File Number(s): 2014/364850; 2015/261537 Publication restriction: None

Introduction 1. The Offender appears before the Court today for sentencing after pleading guilty to two charges on the Crown Sentence Summary (Exhibit A. I should note, first, that I have taken this matter on in the course of the trial by reason of having a break in the trial but I am concerned to provide reasons and remarks on sentence for the benefit of the parties today. 2. The Crown Sentence Summary sets out two counts: 1. the first count is dishonestly obtaining financial advantage by deception in breach of s192E(1)(b) of the Crimes Act. I pause there to note the first count relates to a complainant or victim by the name of Robert Sullivan and the amount involved was $18,500; 2. the second count which comes under the same section, that is dishonestly obtain financial advantage by deception related to a complainant or victim by the name of Henry Wall, now deceased, and the amount of the financial advantage obtained by the Offender was $33,400. 1. The amount in total was $51,900 which is relatively not a huge amount of money for offences of this type, however, I accept that for retired persons such as those, the victims of this crime, they were substantial sums of money. 2. In relation to the victims, I note that Mr Sullivan was born on 21 January 1942 and is now 77 years of age. I note that the other victim of this Offender's conduct was born on 28 December 1921 and is now deceased. He would be 97 and was in the order of 93 or thereabouts at the time of the subject offending. The Offender herself was born on 5 March 1970 and soon will be 49 years of age. 3. In sentencing, the Court, of course, has regard to what is often referred to as the guideposts being the maximum penalties and any standard non-parole periods which may apply to the subject offences, the maximum penalty represents the parliament's assessment of the seriousness of the offending. In my view, the seriousness of this Offender's conduct is extremely serious and the sentence should reflect that in order to ensure adequate punishment. There is no standard non-parole period. In relation to the two counts, the maximum penalty is ten years' imprisonment. There are no matters on a Form 1 which ought to be taken into account nor are there any s166 certificate. 4. The Offender, as I have stated, was born on 5 March 1970 and will soon be 49 years of age. The offending in relation to count 1 occurred in the period 20 March 2014 through 22 June 2015. The offending in relation to the second count occurred 15 May 2014 through to 30 June 2014. For part of the time of that offending, the Offender was on bail in relation to the first count having been arrested in relation to the first count on 11 December 2014. 5. I note that Exhibit A also indicates there is a Co-Offender by the name of Ms Virgili, however, although she has pleaded guilty, she is not in a position to proceed to sentence at this time. Accordingly, no issues of parity arise for my consideration 6. The Offender was committed for trial in relation to these two counts on 25 May 2016 from Wyong Local Court. The matter was first listed for trial in this Court on 13 March 2017 and not reached. It was further listed for trial on 18 September 2017 and again not reached. It was listed for trial on the third occasion on 12 June 2018 when on 13 June 2018, after the presentation of a draft Notice of Agreed Facts the Offender pleaded guilty to the charges currently the subject of this sentence. 7. It was submitted by counsel for the Offender from the bar table that he contacted the prosecutor some time, a matter of weeks, prior to 12 June to attempt at negotiations but that was not achieved until 13 June 2018. Of course, the fact that the matter was listed for trial on three occasions prior to the Offender pleading guilty, which is obviously a matter relevant to the discount for the guilty plea. The guilty plea was entered on 13 June 2018 in this Court. 8. The Offender has, despite re-offending, been on bail since she was first charged on 11 December 2014. No time has been spent in custody and therefore there is no need to backdate the commencement date for the sentence. 9. The evidence on sentence comprised the following: 1. the Crown Sentence Summary (Exhibit A); 2. the Statement of Agreed Facts in relation to an incident which occurred on 18 March 2018 (Exhibit B); and 3. a Sentencing Assessment Report (Exhibit C). 1. On behalf of the Offender, the following was relied upon: 1. a report by Dr Nielssen, psychiatrist, dated 4 October 2018 (Exhibit 1); 2. a reference by Shivana Gould of 25 September 2018 (Exhibit 2); 3. a reference of Eska Singh, undated (Exhibit 3); and 4. a reference from Christopher Gould dated 20 September 2018 (Exhibit 4). 1. In addition, the Court was assisted by submissions from the Crown (MFI 1) together with a document headed, Particulars of Offences (MFI 2). Submissions were helpfully also provided by counsel for the Offender (MFI 3) and I was also provided with some statistics by counsel for the Offender (MFI 4).