General deterrence is an important sentencing factor for fraud offences: R v Mungomery [2004] NSWCCA 450 at [41]. However, it should not be regarded as the primary or pre-eminent sentencing consideration: Totaan v R [2022] NSWCCA 75 at [81]–[83], [90]–[91] (a decision relating to s 16A of the Crimes Act 1914 (Cth)); Parente v R (2017) 96 NSWLR 633 at [101], [108]–[110] (see discussion below).

Such crimes frequently involve a serious breach of trust and are usually only able to be committed because of the previous good character of the person who has been placed in the position of trust. The difficulty in detecting and successfully prosecuting white-collar crime is another reason general deterrence is important. See for example, R v Donald [2013] NSWCCA 238 at [41] and Stevens v R [2009] NSWCCA 260 at [79], where the prevalence of identity crimes and the importance of public confidence in the electronic banking system required considerable weight to be given to general deterrence.

Although sentencing principles applied by courts with respect to repealed fraud provisions in the Crimes Act continue to apply, cases which state that serious fraud requires general deterrence be the primary ore pre-eminent sentencing consideration, or that a sentence of imprisonment must be imposed unless exceptional or unusual circumstances exist, need to be approached with caution following the five-judge-bench decisions of Parente v R and Totaan v R. Propositions that general deterrence should be the primary sentencing factor find no support in the text of the legislation and are incompatible with the judicial sentencing discretion: Totaan v R at [81]–[83], [90]–[91] ] (a decision relating to s 16A of the Crimes Act 1914 (Cth)); Parente v R at [101], [108]–[110].

The same reasoning in Totaan v R is applicable to general deterrence in relation to NSW fraud offences and s 21A Crimes (Sentencing Procedure) Act 1999. The need for general deterrence in any given case must always be assessed by reference to the personal circumstances of the offending: Totaan v R at [98]–[100], [130]; Kovacevic v Mills (2000) 76 SASR 404 at [43].

While for some fraud offences, a specific victim cannot be identified, it is wrong to regard white-collar crime as a victimless crime. For example, in respect of insider trading, McCallum J (as she then was) said in R v Curtis (No 3) [2016] NSWSC 866 at [24] ] that the fraud harmed the community at large by damaging the integrity of the market.

The principles that apply to youth in respect of physical violence extend to “white collar” crimes and offences involving fraud and financial deception. However, in some fraud cases, the very nature of the offending will require a level of sophistication and intelligence, albeit misguided, especially where numerous acts of defalcation are involved: Singh v R [2020] NSWCCA 353 at [41], [55]. For example, in Hartman v R [2011] NSWCCA 261, the offender’s youth (aged 21) and relative immaturity did not have any role to play in downgrading or lessening the importance of general deterrence because he was operating in the adult sphere of business and commerce in every respect and was educated and worldly: [93]; see also Singh v R at [43]–[46], [54]–[57] and Sentencing principles applicable to children dealt with at law at [15-090]; Section 21A(3)(j) — the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability at [11-300] and Age — advanced age and youth at [10-430].

When sentencing for fraud offences, greater assistance is gained from general sentencing principles than reference to statistics or “schedules of fraud appeals” because of the enormous variation in objective and subjective circumstances involved: R v Martin [2005] NSWCCA 190; PC v R [2020] NSWCCA 147 at [118]. In R v Martin, Johnson J said at [56]:

In Tweedie v R [2015] NSWCCA 71 at [45], where the applicant committed, inter alia, 27 offences under s 192E, the court said at [45]: “the database relied upon in relation to the fraud offences contained only five cases of sentencing in the District Court or resentencing in this Court which makes the statistics of no use at all.” See also Scanlan v R [2006] NSWCCA 238 at [93] in respect of the previous form of the fraud offence. See generally Use of information about sentences in other cases at [10-022] and Use of sentencing statistics — Hili v The Queen at [10-024].

Breach of trust can be relevant where it is either an element of an offence of fraud, or as a feature of aggravation: R v Pont [2000] NSWCCA 419 at [43]–[44], R v Murtaza [2001] NSWCCA 336 at [15]; and s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

Where the breach of trust is an element of the offence, it is not to be taken into account additionally as an aggravating factor: R v Martin [2005] NSWCCA 190 at [40] and see Aggravating factors at [19-990] below.

What is a breach of trust? The breach of trust must be in direct contravention of what the offender was engaged to do: R v Stanbouli [2003] NSWCCA 355 at [35]. Hulme J said at [34]:

In R v Pantano (1990) 49 A Crim R 328, Wood J (with whom Carruthers J agreed) said at 330:

For a relationship of trust to exist, there must have been at the time of the offending a special relationship between the victim and offender, transcending the usual duty of care arising between persons in the community in their everyday contact, business or social dealings: In Suleman v R [2009] NSWCCA 70, the judge erred by finding the applicant’s dealings with investors, particularly those within the Assyrian community, amounted to a breach of trust: [22], [27].

Those placed in a special position of trust by the law and the community, such as solicitors and other professionals, who abuse that trust, call their profession into question and merit sentences which ensure other professionals are left in no doubt that serious consequences will follow: R v Pont at [47]. Other professionals may include accountants, executives or directors, and has extended to art dealers (see Coles v R [2016] NSWCCA 32), senior employees (R v Pantano (1990) 49 A Crim R 328 at 338), and nursing home operators (R v Boian (1997) 96 A Crim R 582, R v Giallussi [1999] NSWCCA 56).

A sentencing court may only have “additional regard” to abuse of a position of trust as an aggravating factor under s 21A(2)(k) where it is not an element of the offence.

In R v Martin [2005] NSWCCA 190, the judge erred by having “additional regard” to s 21A(2)(k) when “abuse of authority or a position of trust” was an element of the offence committed, (trustee fraudulently disposing of property under s 172 Crimes Act 1900 (rep)). While mention of the abuse of trust is permissible characterising the offence’s objective gravity, paying “additional regard” to it under s 21A constitutes impermissible “double counting”: R v Wickham [2004] NSWCCA 193 at [22]–[23].

In Martin the court said at [40]:

In Lu v R [2014] NSWCCA 307, the judge did not err in finding the aggravating factor under s 21A(2)(k) established. Although it was an element of the offence under s 176A Crimes Act 1900 (rep) that the offender be a director of a company, “not all company directors accept other peoples’ money for the purpose of investment”, which was the essence of the position of trust abused in that case: [21].

See also Section 21A(2)(k) — abuse of a position of trust or authority at [11-160].

Section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is relevant where a victim is vulnerable, for example, very young, very old, has a disability, or is so by virtue of occupation (such as taxi driver, bus driver or other public transport worker, bank teller or service station attendant).

The aggravating feature is concerned with the vulnerability of a particular class of victim and is not directed to vulnerability in a general sense: R v Tadrosse (2005) 65 NSWLR 740. In Tadrosse, it was impossible to know whether s 21A(2)(l) should apply to all, or only some of the offences, and if so, which ones. The court concluded there was no evidence any of the victims fell within the categories under s 21A(2)(l): Tadrosse at [24].

See also Section 21A(2)(l) — the victim was vulnerable at [11-170].

The aggravating factor in s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 is concerned with the situation where a single offence contains multiple criminal acts or victims. For example, in Johnston v R [2017] NSWCCA 53, when considering the question of manifest excess it was relevant that the plea was to a “rolled up count” involving 156 fraudulent transactions, meaning the criminality involved was greater than a charge involving only one episode of criminal conduct: at [68]–[70].

However, s 21A(2)(m) is not concerned with offenders who are being sentenced for a series of offences, separately charged, even when committed against multiple victims because that would constitute “double counting”: R v Tadrosse (2005) 65 NSWLR 740 at [28]–[29]; R v Kilpatrick [2005] NSWCCA 351; Clinton v R [2018] NSWCCA 66 at [27]–[29]. Such factors can be taken into account as a circumstance of the offending: Clinton v R at [37]–[39]. In Clinton, while the agreed facts revealed uncharged criminal acts were involved in the commission of each fraud offence, s 21A(2)(m) did not apply because the acts were not particularised in the offences: [38]–[40].

See also Section 21A(2)(m) — the offence involved multiple victims or a series of criminal acts at [11-180].

An offence involving systematic dishonesty accompanied by planning, sophistication and repetition will constitute an aggravating factor under s 21A(2)(n) on sentence: R v Pont [2000] NSWCCA 419 at [43]–[44]. Impulsive offences have been distinguished from those with sophisticated planning: R v Pont at [43]–[44]; R v Murtaza [2001] NSWCCA 336 at [15].

The aggravating factor was established in Yow v R [2010] NSWCCA 251 as the nine offences of making and using a false instrument were committed in the context of an organised criminal syndicate where the applicant arrived in Australia with the sole purpose of using counterfeit credit cards to obtain goods to on-sell: at [13]–[14].

See also Section 21A(2)(n) — the offence was part of a planned or organised criminal activity at [11-190].

Committing a fraud for financial gain, will sometimes constitute an aggravating factor on sentence, but care must be taken to ensure there is no “double counting”. In Whyte v R [2019] NSWCCA 218, the judge erred by taking into account financial gain under s 21A(2)(o), when financial gain was an element of the offences of obtaining financial advantage by deception under ss 178BA (rep) and 192E and the financial gain was not present to an unusual extent: Whyte v R at [30]–[34]. See also Clinton v R [2018] NSWCCA 66 at [10], [12], [20]–[22].

Financial gain is not an inherent characteristic of identity fraud and may constitute an aggravating factor in some cases: Lee v R [2019] NSWCCA 15 at [83]; see also [20-037] Identity crime offences — ss 192J–192L Crimes Act 1900.

This sentencing factor is discussed in more depth and with reference to High Court decisions in Mental health or cognitive impairment at [10-460]. Generally, see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]; R v Donald [2013] NSWCCA 238 at [75].

In cases of fraud, care must be taken where an offender has claimed a mental condition and the offence has involved deception over a long period of time. The court must take particular care in determining whether there is a causal connection between the offender’s mental condition and the commission of the offence(s). See for example:

Prior good character is a mitigating factor to be taken into account under s 21A(3)(e) and (f). However, in the case of fraud, where the offender has been appointed to a position of trust because of their good character, and it is abused, general deterrence will become a major consideration and good character will be of less relevance: R v Gentz [1999] NSWCCA 285 at [12].

Where there are repeated offences over a period of time, or the offender has engaged in a course of conduct to avoid detection, prior good character will carry less weight: R v Smith [2000] NSWCCA 140 at [20]–[24]; R v Phelan (1993) 66 A Crim R 446; R v Houghton [2000] NSWCCA 62 at [18].

An offender’s lack of a previous criminal record will not be accorded the significance it might have had where a large number of offences were committed over a long period of time: R v Chan [2000] NSWCCA 345 at [20] (a two-judge bench decision).

See also Section 21A(3)(e) — the offender does not have any record (or any significant record) of previous convictions at [11-250].

Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides that remorse demonstrated by making reparation for loss is a mitigating factor. Remorse will only be relevant as a mitigating factor where the offender has provided evidence that he or she has accepted responsibility for their actions, and has acknowledged any injury, loss or damage caused by their actions or made reparation for such injury, loss or damage (or both).

See also Section 21A(3)(i) — remorse shown by the offender at [11-290].

Restitution can be a mitigating factor where it involves a degree of sacrifice. It can also indicate a degree of remorse where it occurs, after the offender becomes aware of the full consequences of their criminality: R v Phelan (1993) 66 A Crim R 446; R v Giallussi [1999] NSWCCA 56 and R v Strano [2002] NSWCCA 531 at [76]. See also Subramaniam v R [2013] NSWCCA 159 at [53]–[54].

In R v Woodman [2001] NSWCCA 310 (a two-judge bench decision) Wood CJ at CL said at [32]:

In Upadhyaya v R [2017] NSWCCA 162, the judge did not err by not taking the compensation direction under s 97(1) Victims Rights and Support Act 2013 into account as a mitigating factor: [68]. Under the common law, confiscation orders and the like could only be taken into account in mitigation in exceptional circumstances, and even then, not when the order was to forfeit the proceeds, or was in the nature of a pecuniary order reflecting the benefit derived from committing the offence: Upadhyaya v R at [64]; R v Brough [1995] 1 NZLR 419; R v Kalache [2000] NSWCCA 2 at [76]. A direction under s 97(1) is in the nature of a claw-back or disgorgement of an offender’s “ill-gotten gains”, and therefore by definition does not operate in mitigation of sentence: Upadhyaya v R at [65]–[66].

The statutory framework which provides the mandatory discounts for guilty pleas to offences dealt with on indictment is contained in Pt 3, Div 1A Crimes (Sentencing Procedure) Act 1999. See [11-515] Guilty plea discounts for offences dealt with on indictment. For fraud offences dealt with summarily to which the common law still applies, see [11-520] Guilty plea discounts for offences dealt with summarily and exceptions to Pt 3 Div 1A.

The length and complexity of a prospective fraud trial is a matter relevant to the utilitarian discount for a plea of guilty: R v Todorovic [2008] NSWCCA 49 at [24].

See also Guilty pleas at [11-500]. Note that the position in relation to Commonwealth offences is different: see [16-010] General sentencing principles applicable at plea of guilty: s 16A(2)(g).

Delay in having the matter finalised leaves the offender in a position of uncertainty and can be taken into account: R v Houlton [2000] NSWCCA 183 at [23], [41]–[42]. It is not every case where delay has occurred in the prosecution of an offender that a reduced sentence results, since each case depends upon its own particular circumstances: Coles v R [2016] NSWCCA 32 at [20]. Delay is not uncommon in complex fraud cases because of the difficulty in detection, investigation and proof. Consequently, delay will have less significance where the offender has engaged in complex fraud and made conscious and deliberate attempts to avoid detection: R v Houlton; Miller v R [2014] NSWCCA 34 at [183]–[186]; see also R v Zerafa [2013] NSWCCA 222 at [88]–[89]; Giourtalis v R [2013] NSWCCA 216 at [1791]–[1793]; R v Donald [2013] NSWCCA 238 at [41]–[57] in the context of Commonwealth fraud.

Where delay is taken into account, it is preferable that is done so in the overall assessment of sentence rather than as a quantified reduction on the sentence imposed: R v Boughen [2012] NSWCCA 17 at [105].

See also Subjective matters at common law at [10-530].

See [10-490] Hardship to family/dependants.

General deterrence may be a significant sentencing consideration in serious Commonwealth frauds. Such frauds may not be easy to detect and may produce great rewards. General deterrence may also be more effective in the case of white-collar criminals: R v Boughen [2012] NSWCCA 17 at [59]–[91], [96]–[98]; Aitchison v The Queen [2015] VSCA 348 at [66]; DPP (Cth) v Gregory (2011) 34 VR 1 at [15]; Milne v R [2012] NSWCCA 24 at [296]–[297]; Keefe v R [2014] VSCA 201 at [77]; and Zaky v R [2015] NSWCCA 161 at [49].

However, care must be taken not to give general deterrence pre-eminent or primary significance over and above other sentencing factors, s 16A does not fetter discretion and establish a hierarchy of sentencing considerations, and the need for general deterrence in any given case must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender: Totaan v R at [98]–[100], [130]. See also Kovacevic v Mills (2000) 76 SASR 404 at [43]; R v Newton [2010] QCA 101 at [7]–[8], [29], [38]; and [19-940] General sentencing principles for NSW fraud offences.

Despite the recognised significance of general deterrence, white collar crime has traditionally been treated more leniently than other forms of criminality: DPP (Cth) v Gregory [2011] VSCA 145 at [53]–[56]; R v Nguyen [1997] 1 VR 386 at 389–390. There is a tendency to place a disproportionate emphasis on a dollar value concept of the loss and effect on the personal circumstances of the offender and their family, sometimes resulting in a lack of deterrence and proportionality: DPP (Cth) v Gregory at [55].

For white collar offences, such as those against the Corporations Act 2001 (Cth), less weight is attached to prior good character where it facilitates the offender committing the offence: R v Rivkin (2004) 59 NSWLR 284 at [410]; R v Boughen [2012] NSWCCA 17 at [73]; Merhi v R [2019] NSWCCA 322 at [52]–[53]; Elomar v R [2018] NSWCCA 224.

While the presumed anxiety or distress of standing twice for sentence cannot be read into s 16A(1), actual mental distress can be taken into account under s 16A(2)(m): Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [20]–[23]. See also Character, antecedents, age, means and physical or mental condition: s 16A(2)(m) in [16-010] General sentencing principles applicable.

There is no principle or precedent which limits a finding of a breach of trust to offences which happen during the period when the offender is employed. Not only current employees but also former employees should be trusted with the knowledge and confidential information they gain through their employment: Merhi v R [2019] NSWCCA 322 at [32], [39]; R v Standen [2011] NSWSC 1422; Suleman v R [2009] NSWCCA 70. In Merhi v R, a tobacco revenue fraud case, the judge found the fact the offender was using information and knowledge she had obtained while previously employed by the Australian Border Force aggravated the offence: at [33], [38]–[39].

In Ridley v R [2008] NSWCCA 324, the offender committed a number of Commonwealth dishonesty offences by falsely claiming goods and services tax refunds in activity statements submitted to the Australian Taxation Office. Allsop P noted the self-assessment system relies on “the honesty of individual taxpayers” and said the primary judge’s finding that the offence involved a breach of trust and fraud on all members of the community who pay their taxes was an entirely legitimate consideration. The Tax Commissioner’s reliance on information the taxpayer has provided, and that the taxpayer has made a reasonable and honest attempt to meet their obligations, is in terms a kind of trust. Members of the community rely on each other for honesty for the operation of the tax system: at [83]–[85].

Breach of trust is not made out simply because the victim trusted the offender for some reason or other, for example because of the offender’s standing in the community or because they appeared to be a successful businessman. Nor is it made out because the offender dealt with “commercially naïve people”. There must be, at the time of the offending, a particular relationship between the offender and the victim that transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. It is not enough that the two persons are involved in a commercial relationship: Suleman v R at [22], [25] (a NSW fraud case). See also Breach of trust under s 21A(2)(k) at [19-990] Aggravating factors above.

While delay is not a specific s 16A(2) factor, it may be taken into account in mitigation on sentence in some circumstances: see also Delay at [10-530]; also List of factors under s 16A(2) is not exhaustive in [16-010].

In cases involving complex financial transactions, the difficulty of detection and proof must be taken into account when considering delay: R v Zerafa [2013] NSWCCA 222 at [89]–[92]; R v Kearns [2003] NSWCCA 367 at [68].

See also the discussion above in General sentencing principles for NSW fraud offences at [19-940] and Fixing non-parole periods and making recognizance release orders at [16-050].

Receiving criminal and civil penalties in separate proceedings does not amount to double jeopardy: Adler v R [2006] NSWCCA 158 at [52]–[54]. In Adler v R the offender’s conduct was not a standalone offence under s 184(2) but rather a deliberate fraud causing a succession of other deliberately and intentionally fraudulent acts: at [87]. The severe criminal fraud warranted a sentence very much towards the top rather than the mid-point of the sentencing range: at [89].

Protecting the Australian taxation system from loss by fraud is important to maintaining public confidence in the taxation system. Tax fraud offences which are not prosecuted by the Australian Taxation Office (ATO) are generally dealt with under s 134.1(1) Criminal Code (dishonestly obtaining Commonwealth property), s 134.2(1) (obtain financial advantage by deception) and s 135.4(3) (dishonestly cause a loss to the Commonwealth). While the ATO is the ostensible victim, serious tax fraud will inevitably have a flow on effect to the honest taxpayer: R v Liddell [2000] VSCA 37 at [74]; Hili v The Queen (2010) 242 CLR 520 at [63].

In DPP (Cth) v Goldberg [2001] VSCA 107 the Court discussed the nature of tax fraud at [32]:

The Court also said at [51]:

While many cases suggest serious tax fraud should ordinarily attract imprisonment unless there are exceptional circumstances, ss 16A(1) and 17A of the Crimes Act 1914 are inconsistent with such statements and more recent case law: see Sabbah v R (Cth) [2020] NSWCCA 89 at [2]–[10]; Kovacevic v Mills (2000) 76 SASR 404 at [43]; Totaan v R [2022] NSWCCA 75 at [90]–[100] and Hili v The Queen (2010) 242 CLR 520 at [36]–[38], [41]; see also General deterrence and the inevitability of imprisonment at [19-940] General sentencing principles for NSW fraud offences.

Although general deterrence may be an important sentencing consideration in taxation offences, it should not be the primary or pre-eminent consideration: Totaan v R; see also above [20-055] at General deterrence — s 16A(2)(ja).

Courts have observed that Commonwealth tax fraud has not always been sufficiently reflected in the sentence imposed, compared to other forms of criminality: R v Nguyen [1997] 1 VR 386 at 389–390; DPP (Cth) v Gregory [2011] VSCA 145 at [54]–[55]. The consequences of discovery and punishment and the havoc a custodial sentence usually wreaks on the lives of white-collar criminals and their families, may distract attention from the importance of general deterrence: DPP (Vic) v Bulfin [1998] 4 VR 114 at 131–132.

Persistent offending over a long period of time in disregard to warnings by the ATO and attempts to hamper ATO investigations will increase the gravity of the offence. For example, see Noble v R [2018] NSWCCA 253, and for comparable cases, Hughes v R [2011] NSWCCA 226; Edwards v R [2013] NSWCCA 54; R v Hawkins [2013] NSWCCA 208; and Dickson v R [2016] NSWCCA 105.

Persons who abuse the system of social welfare must expect to face heavy penalties: Zaky v R [2015] NSWCCA 161 at [43]; R v Winchester (1992) 58 A Crim R 345; R v White [2001] NSWCCA 343 at [36]. Like other Commonwealth fraud, general deterrence and punishment are important considerations when sentencing for social security fraud offences: Dagher v R [2017] NSWCCA 258 at [31]; Crimes Act 1914, ss 16A(2)(ja), (k).

Although general deterrence may be an important sentencing consideration in social security fraud, it should not be the primary or pre-eminent consideration: Totaan v R [2022] NSWCCA 75 at [98]–[99]; see also General deterrence and the inevitability of imprisonment at [19-940] and [20-055] above at General deterrence — s 16A(2)(ja).

The amount of money dishonestly obtained is also a relevant factor: R v Hawkins (1989) 45 A Crim R 430 at 435. The amount is indicative of the extent to which an offender is prepared to be dishonest for the purposes of advancing their own purposes. Offending that is isolated or spontaneous will, as a general proposition, be regarded as less serious than that which involves a repetitive course of conduct which continues over an extended period of time: Tham v R [2020] NSWCCA 338 at [50]–[51]; R v De Leeuw [2015] NSWCCA 183 at [116]. The use to which the dishonestly appropriated funds were put should also be taken into account. For example, whether it is because of a need or greed: Dagher v R [2017] NSWCCA 258 at [17]. Moreover, because offending of this nature is easy to commit but difficult to detect, the fact that such offending only ceased after detection will also be relevant, as will any breach of trust: Tham v R at [52], [54]; R v Lopez [1999] NSWCCA 245 at [17]–[18].

See also R v White [2001] NSWCCA 343.

Like other fraud, the period of time over which the offences were committed is relevant: R v Hawkins (1989) 45 A Crim R 430 at 435; R v Delcaro (1989) 41 A Crim R 33 at 38.

A review of the case law on social security fraud (see R v Boughen [2012] NSWCCA 17 at [60]–[65]) suggests that statements of principle on fraud are applied less rigorously in tax cases so that tax offenders are treated more leniently than social security offenders: R v Boughen at [66], [91]. It has been observed that the frequency of Crown appeals in tax cases (including DPP (Cth) v Goldberg [2001] VSCA 107, DPP (Cth) v Gregory [2011] VSCA 145 and R v Jones; R v Hili [2010] NSWCCA 108) reflects that “sentencing judges find it difficult to impose sentences that reach the high level which they have, in theory, accepted as being appropriate”: R v Boughen at [69]. Social security offenders are “almost universally less privileged, less prosperous, less educated, in possession of fewer resources, intellectual and otherwise” whereas tax offenders are often “middle aged men, intelligent, professionally successful, financially secure, prosperous”: R v Boughen at [76], [96].

Section 184 of the Corporations Act 2001 (Cth) provides the offences of director or other officer of a corporation failing to exercise power in good faith in the best interests of a corporation (s 184(1)); a director, officer or employee of a corporation recklessly or dishonestly using their position with intent to gain an advantage (s 184(2)) and a person recklessly or intentionally dishonestly using information obtained because they are a director, officer or employee of a corporation with intent of gaining an advantage (s 184(3)). The maximum penalty is 15 years imprisonment and/or a fine of 4,500 penalty units for an individual. The Corporations Act also contains other forms of corporate fraud, including engaging in dishonest conduct in relation to providing financial services contrary to s 1041G(1).

For examples of sentencing decisions for such offences, see Sigalla v R [2021] NSWCCA 22, R v Donald [2013] NSWCCA 238, R v Glynatsis [2013] NSWCCA 131, Nakhl v R (Cth) [2020] NSWCCA 201, and R v Silver [2020] QCA 102.

There is an inherent leniency in suspended sentences and it has been repeatedly observed that the real bite of general deterrence takes hold only when a full-time custodial sentence is imposed: [84], [86]; R v Boulden [2006] NSWSC 1274 at [51].

In the DPP (Cth) v Northcote [2014] NSWCCA 26 the Court held an intensive correction order was manifestly inadequate and offensive to the administration of justice and a sentence of 3 years 6 months imprisonment was substituted: [117].

Additional fraud offences in the context of currency, and the federal banking system, may be prosecuted under other specific Commonwealth enactments. In Hayward v R (Cth) [2021] NSWCCA 63, the offences included uttering and possessing counterfeit currency contrary to ss 7(1) and 9 of the Crimes (Currency) Act 1981 (Cth) and presenting false identification documents to banks, and receiving banking services using a false name, contrary to ss 137(1) and 140 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Over 3 months, in various places across Australia, bank accounts were opened in false names with false passports to deposit counterfeit Euros and thereby obtain Australian currency. The counterfeit Euros totalled $306,162.57. Counterfeit money offences undermine community confidence in currency and its place in the banking system: Hayward at [63]; R v Institoris [2002] NSWCCA 8 at [38]. The quantity and quality of counterfeit notes uttered was a significant factor on sentence, as was the value of the proceeds derived from the uttering offences: at [66]; R v Institoris at [78]; R v Gittani [2002] NSWCCA 139 at [22]–[23]. For further commentary on Money laundering more broadly, see [65-200].

General fraud includes frauds against the Commonwealth benefit or assistance schemes such as Medicare fraud, child care benefit fraud, identity fraud and fraud-related money laundering. The majority of these frauds are prosecuted under s 134.2 of the Criminal Code (Cth) (obtain a financial advantage by deception), s 135.1 (general dishonesty offences) and s 135.4 (defraud the Commonwealth). Reference should be made to the sentencing principles set out in [19-940] General sentencing principles for NSW fraud offences and [20-055] Statutory factors under s 16A(2) Crimes Act 1914 above.

Other useful references — Commonwealth DPP, Sentencing of federal offenders in Australia: a guide for practitioners, 7th edn, July 2024, accessed 22/7/2024.