The team at National Criminal Lawyers® is not only proud but grateful to have received a result recently that has not been ever seen.
Our client was charged with more than 100 offences of dishonestly obtain financial advantage by deception and deal with proceeds of crime in the amount of more than $500,000.
These offences carry a maximum penalty of 10 and 5 years imprisonment respectively.
The Facts
The allegations were that our client dishonestly obtained donations from her employer and then sold the donated items at Sydney markets for cash. She retained the cash payments in her personal name. In addition, as an employee of the organisation, it was alleged that our client’s role consisted of liaising with external stakeholders persuading and assist with the obtaining of the donations.
How these cases are generally dealt with
Given the amount alleged to have been frauded and the significant number of charges, the superior Courts have often said that a full-time custody sentence must be imposed. There are of course exceptions, however these exceptions do not ordinarily succeed in favour of the offender.
What did our lawyers do?
Prior to Court, our lawyers at National Criminal Lawyers wrote representations to the NSW police to plea bargain/reduce the charges. In our written submissions to the police, we proposed an offer to the prosecution that if our client were to plead guilty, the matter should be kept in the Local Court rather than the District Court with some of the offences placed on Form 1.
After many discussions the prosecution ultimately agreed with our representations, reducing the offences to nearly half the original charges, remaining with 55 offices and the matter was kept in the Local Court.
Nevertheless, our team of lawyers at National Criminal Lawyers did not stop there.
The Sentence
On the day of sentencing, we submitted that instead of a full-time custodial sentence which is generally common in this time of offence of this magnitude, an Intensive Correction Order (ICO) should be imposed instead, taking into account the subjective circumstances of our client and that she had already served some time in custody having been bail refused before our office successfully got our client bail.
The prosecution relied on Criminal Court of Appeal Cases, one of which was Scott v DPP (NSW) [2015] NSWCA 60 which involved an offender who had a significant criminal history in relation to dishonestly offences. Our lawyers submitted to the Court that our client’s case is clearly distinguishable; in that our client had no prior criminal history and was otherwise a person of good character.
The prosecution also fought hard and relied a further case of Itaoui v R [2006] NSWCCA 273. Our rebuttal to this case related to the level of sophistication of the offending and breach of trust involved in Itaoui was much higher than the present matter. For in Itaoui the offender was trusted implicitly with a trust account. But in the present case our client’s role was limited to their role as an employee without any additional relationship of trust in effect.
Further we submitted that Itaoui was decided under a different sentencing regime where the only alternative to full time custody was a suspended sentence (which has now been repealed). But in our client’s case the Court had the option available at sentencing our client to an order that a period of imprisonment be served by way of ICO which provides an alternative to full time imprisonment and is capable of incorporating a very real and signification degree of punishment and deterrence to others.
Our lawyers further submitted that the length of the indicative sentence does not limit the Court’s power to order that a period of imprisonment be served by way of ICO. In addition, our lawyers also addressed that a home detention condition should not be imposed as part of our client’s ICO unless an assessment report relating to the imposition of such a condition is before the Court.
The Result
NCL wins.
The Court ultimately agreed with our lawyers and granted our client an ICO. Not only does this ensure that our client can seek treatment in the community, but it also means that our client can start a fresh new beginning and not spend any time in full time custody.