R v Oberg ; R v Peters [2019] NSWDC 697

District Court New South Wales

Medium Neutral Citation: R v Oberg ; R v Peters [2019] NSWDC 697 Hearing dates: 25 October 2019 Date of orders: 01 November 2019 Decision date: 01 November 2019 Jurisdiction: Criminal Before: Judge J Priestley Decision: Mark Peters – Sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years. Colin Oberg – Sentenced to an aggregate term of imprisonment of 9 years with a non-parole period of 5 years and 3 months Catchwords: CRIMINAL LAW - Sentence – Fraud - Totality - Organised, pre meditated and calculated offending - prolonged period of illegal behaviour. Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act Cases Cited: Postiglione v R [1997] HCA 26 R v MAK (2006) 167 A Crim R 159 R v McInerney (1986) 42 SASR 111 Category: Sentence Parties: The Crown Colin James Oberg - Offender Mark Arthur Peters - Offender Representation: Counsel: Mr Leask for the Crown; Mr Pickering for Mr Oberg Mr Apostle for Mr Peters

Solicitors: File Number(s): 2014/00100189;2017/00249689

Judgment

The proven offences 1. On Tuesday 25 June 2019 the jury in this matter returned verdicts of guilty in respect of all but one of the 15 charges on the indictment. The exception, count 10, was the subject of a directed verdict of not guilty on the application of the Crown. The reference hereafter to "charges" or "counts" excludes count 10. 2. The facts of each of the charges involved the use of cheques, alleged to be valueless and clearly found to be so by the jury. The purported value of the cheques ranged from $342 (count 15 against Mr Peters) to $1.5M (count 13 against Mr Oberg). 3. All of the charges but one was a charge under the now repealed section 178BA of the Crimes Act. That section carries a maximum sentence of 5 years imprisonment. The one exception was a charge (count 15 against Mr Peters) under section 192E of the Crimes Act, which carries a maximum sentence of 10 years. That section is the amended version of the earlier section referred to and reflects the fact that the offence occurred some years after the other offences charged. Each of the charges alleged that the accused had by deception dishonestly obtained a financial advantage. In each case the deception was a false representation, and with one exception that false representation was that the cheque, relevant to the charge, was a cheque for value. The one exception was count 1 against Mr Peters only, where the deception was the false representation of a promise to pay $2000 for legal fees. This act was followed by providing a cheque for $2000 which was valueless. In that case the dishonesty was the absence of any intention to pay, and the financial advantage was the evasion of payment of the legal fees. In all the other charges, the dishonesty was knowing the cheque being presented had no value, and the financial advantage was the obtaining of credit for the face value of the cheque. 4. There were four charges where both accused were charged (charges 2, 7, 8 and 9), there were four charges in respect of which Mr Peters alone was charged (charges 1, 3, 4 and 15) and there were six charges where Mr Oberg alone was charged (charges 5, 6, 11, 12, 13 and 14). 5. The elements of each charge found by the jury to have been proven beyond a reasonable doubt were that the accused had: 1. By deception, that is, intentionally or recklessly deceiving another; 2. Caused the gaining of a financial advantage for themselves or another; 3. That in so acting the accused had acted dishonestly; and 4. Had thereby obtained a financial advantage. 1. In determining sentence any matter I take into account adverse to the offenders needs to be a finding beyond reasonable doubt; any matter in an offender's favour need only be found on the balance of probabilities. 2. The alleged, and found, financial advantage varied between the charges. A summary of the charges and their elements, found to have been established beyond a reasonable doubt, is set out in the following table: