BRIAN WALKER CRIMINAL LAWYER
Fraud
Committing fraud can result in imprisonment and/or the imposition of a criminal record. Make sure you get a criminal barrister to represent your interests.
My client was charged with embezzlement of approximately $200,000. Following advice, my client plead guilty. Given the amount of money involved, it was regarded as a serious crime by the prosecution who submitted to the learned Magistrate that a jail sentence should be imposed.
On sentencing on behalf of the offender, evidence was presented to the learned Magistrate regarding the context of the offending, why my client offended and why the purposes of sentencing could be met without the imposition of a jail sentence. Ultimately His Honour was satisfied that an appropriate sentence would be one where my client remained in the community. As such, my client was sentenced to a Community Corrections Order which allowed my client to maintain his liberty.
This was a great result for my client who can now continue with his rehabilitative efforts post the offence and maintain his liberty in the community.
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My client was charged with a number of offences arising from my client’s fraudulent lodgement of Business Activity Statements (BAS) to the Australian Taxation Office (ATO). The fraudulent lodgements resulted in my client obtaining a number of GST refunds that he was not entitled to. My client’s offending behaviour was detected by the ATO which resulted in my client being charged with 13 charges pertaining to defrauding a Commonwealth entity. Each charge carries a maximum penalty of 10 years imprisonment.
My client approached me asking for assistance in relation to his charges. After negotiations with the Commonwealth Department of Public Prosecutions (CDPP), my client plead guilty to 3 charges of defrauding a Commonwealth entity with the remaining 10 charges withdrawn.
Upon sentencing, submissions were made to the learned Judge concerning the hardship that would be occasioned to my client’s family should he be sentenced to a full-time custodial sentence noting a recent Court of Criminal Appeal decision of Totaan v R [2022] NSWCCA 75, where the court ruled that hardship occasioned to a family member need not be “exceptional” for a court imposing a sentence for a Federal Office to have regard to.
Submissions were provided to the learned Judge concerning the imposition of a jail sentence without actually going to jail following the ruling of a recent High Court case of Stanley v Director of Public Prosecutions (DPP) (NSW) [2023] HCA 3. After hearing all submissions, ultimately Her Honour was satisfied that the appropriate sentence for my client would be a sentence of imprisonment to be served in the community by way of an Intensive Corrections Order. This was a great result for my client and his family as whilst he was sentenced to a term of imprisonment, he maintains his freedom and liberty within the community.
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Whilst acting for the AFP/Commonwealth, I appeared in a forfeiture order application seeking to forfeit approximately worth $220,000 made up of cash consisting of Australian and United States Dollars. Justice Adamson of the Supreme Court, having been satisfied of the prerequisites to making the forfeiture order pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), made the order sought.
This resulted in the forfeiture of approximately $220,000 to the confiscated assets account, which is an account managed by the Commonwealth to spend on anti-crime prevention measures amongst other things. Please see judgment below:
Supreme Court
New South Wales
- Medium Neutral Citation:
- The Commissioner of the Australian Federal Police [2018] NSWSC 1737
- Hearing dates:
- 13 November 2018
- Decision date:
- 13 November 2018
- Jurisdiction:
- Common Law
- Before:
- Adamson J
- Decision:
- See paragraph [13]
- Catchwords:
- PROCEEDS OF CRIME – application for a forfeiture order – no exclusion application made – notice given to interested parties – orders made as sought
- Legislation Cited:
- Proceeds of Crime Act 2002 (Cth), ss 19, 49, 69, 335, 338
- Category:
- Principal judgment
- Parties:
- The Commissioner of the Australian Federal Police (Plaintiff)
- Representation:
- Counsel:
B Walker (Plaintiff)Solicitors:
Australian Federal Police (Plaintiff) - File Number(s):
- 2018/107958
JUDGMENT – EX TEMPORE
- The Commissioner of the Australian Federal Police (the plaintiff) seeks a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (the Act). Mr Walker, who appears on behalf of the plaintiff, requested that my associate call the names of the following persons outside the courtroom before the matter commenced. Those persons are: Alexander Daniel, Geraint Coles, Douglas Brodie Gray, Lorraine Lewis Wright and Royston Eustace D’Lima. There was no response when those parties’ names were called outside the courtroom.
- Section 49 of the Act relevantly provides that a court with “proceeds jurisdiction” must make an order that property specified in the order is forfeited to the Commonwealth if certain matters set out in the subparagraphs to s 49(1) of the Act are satisfied. This court is a court with proceeds jurisdiction: s 335(2) of the Act.
- The first matter in s 49(1)(a) of the Act is that a responsible authority for a restraining order under s 19 of the Act that covers the property applies for an order under this subsection. The plaintiff is a responsible authority within the meaning of s 338 of the Act and applied for a restraining order under s 19 of the Act. I note that that restraining order was made in respect of the property in schedules 1, 2, 3 and 4 of the summons, which was filed on 6 April 2018. I note that a restraining order in respect of that property was made by Button J on 8 May 2018. Accordingly, I am satisfied that the condition in s 49(1)(a) is satisfied.
- I turn now to s 49(1)(b), namely, that the restraining order has been in force for at least six months. As referred to above, Button J made the restraining order on 8 May 2018 and, accordingly, s 49(1)(b) has been satisfied in the present case.
- Section 49(1)(c) requires the court’s satisfaction of certain matters. However, s 49(3) provides that s 49(1)(c) does not apply if no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order; or, (b) any such application that has been made has been withdrawn. Mr Walker read the affidavit of Katrina Hoyes affirmed on 9 November 2018 and the affidavit of service of Rebecca Anne Hema sworn on 9 November 2018. Having read those affidavits, I am satisfied that the Commissioner has identified five persons who are referred to as the interested parties being those persons whose names my associate called outside the courtroom before the hearing began. No application for an exclusion order has been made by any of those persons.
- I am satisfied that those persons have been given notification both of the making of the restraining order by Button J on 8 May 2018 as well as the plaintiff’s intention to apply for forfeiture orders today, 13 November 2018. As no exclusion applications have been filed, I am satisfied, on the basis of those two affidavits, that they have been notified of those matters and that no substantive response has been received from any of the interested parties to the letters informing them of those matters and of the possibility of seeking an exclusion application.
- Under those circumstances, I am satisfied that no application has been made for an exclusion order by any of those persons and, accordingly, it is not necessary for s 49(1)(c) of the Act to be satisfied.
- Turning now to the remaining subsection, s 49(1)(e) of the Act, I am satisfied, on the basis of the affidavits referred to, that the plaintiff has taken reasonable steps to identify and notify persons with an interest in the property. I note that the relevant property was sums of cash seized by the Australian Federal Police on 13 January 2016 from various locations.
- As I am satisfied as to each of the matters referred to in s 49(1), I am obliged by that section to make an order that the property specified in the order is forfeited to the Commonwealth. Mr Walker has provided me with short minutes of order, which I propose to make. I will make orders in terms of paragraphs 1, 2, 3 and 4 of those short minutes of order.
- In addition, in paragraph 5 of those short minutes, Mr Walker seeks an order pursuant to s 69(2) of the Act that the Commonwealth have leave to dispose of or otherwise deal with the forfeited property immediately. In the circumstances, there would appear to be no reason why the property in question, being amounts of cash, should not be dealt with by the Commonwealth immediately. Accordingly, I am satisfied that it is appropriate to make an order in terms of paragraph 5 of the short minutes of order.
- I also make an order in terms of paragraph 6, namely, that these orders be entered forthwith.
- Accordingly, I will sign that and date the orders and give them to my associate, who will apply the Court’s seal to them.
Orders
- For the reasons given above, I make the following orders:
1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One be forfeited to the Commonwealth.
- 2. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two be forfeited to the Commonwealth.
3. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three be forfeited to the Commonwealth.
4. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four be forfeited to the Commonwealth.
5. Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth have leave to dispose of, or otherwise deal with, the forfeited property immediately.
6. These orders be entered forthwith.
SCHEDULE ONE
The sum of approximately AUD40,000 cash seized by the Australian Federal Police (AFP) on 13 January 2016 from Bondi Beach in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.
SCHEDULE TWO
The sum of approximately AUD10,000 cash seized by the AFP on 13 January 2016 from the Ford Focus vehicle bearing NSW registration number and deposited into the RBA Trust Account, together with any interest earned on that amount.
SCHEDULE THREE
The sum of approximately USD51,350 cash seized by the AFP on 13 January 2016 from Bondi Beach in the State of New South Wales and converted by the Commonwealth Bank of Australia to approximately AUD69,375.55, together with any interest earned on that amount.
SCHEDULE FOUR
The sum of approximately AUD98,750 cash seized by the AFP on 13 January 2016 from Zetland in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.
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DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 November 2018
Whilst acting for the AFP/Commonwealth, I appeared in a forfeiture order application seeking to forfeit approximately worth $400,000 made up of cash consisting of Australian Dollars. Justice Davies of the Supreme Court, having been satisfied of the prerequisites to making the forfeiture order pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), made the order sought.
This resulted in the forfeiture of approximately $400,000 to the confiscated assets account, which is an account managed by the Commonwealth to spend on anti-crime prevention measures amongst other things.
This was a good result for the Commonwealth as His Honour was persuaded to employ section 316 of the Proceeds of Crime Act 2002 (Cth), which allowed the forfeiture order to be made even though the restraining order had only been in place for 2 months and not the requisite 6 months. Please see judgment below:
Supreme Court
New South Wales
- Medium Neutral Citation:
- Application by the Commissioner of the Australian Federal Police [2018] NSWSC 1302
- Hearing dates:
- 22 August 2018
- Date of orders:
- 22 August 2018
- Decision date:
- 22 August 2018
- Jurisdiction:
- Common Law
- Before:
- Davies J
- Decision:
- Pursuant to section 316 of the Proceeds of Crime Act 2002 (Cth), the Court makes the following orders by consent:
1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) (the Act), the property specified in Schedule One be forfeited to the Commonwealth.
2. Pursuant to section 69(2) of the Act, the Commonwealth have leave to dispose of, or otherwise deal with, the forfeited property immediately.
SCHEDULE ONE
The cash amount of AUD 399,950 seized by the Australian Federal Police on 26 September 2015 (recorded on AFP Property Seizure Record M337410) together with any interest earned on that amount.
- Catchwords:
- CRIME – proceeds of crime – consent order for forfeiture of restrained property – where six month period has not elapsed – where person served with proceedings has made no application in respect of property – whether order can be made without that person’s consent
- Legislation Cited:
- Proceeds of Crime Act 2002 (Cth) ss 49, 69, 316
- Cases Cited:
- Nil
- Texts Cited:
- Nil
- Category:
- Procedural and other rulings
- Parties:
- Commissioner of the Australian Federal Police
Stuart Cole (Interested party) - Representation:
- Counsel:
B Walker (Plaintiff)
H Woolf (Interested party)Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Nyman Gibson Miralis (Interested party) - File Number(s):
- 2017/251156
- Publication restriction:
- Nil
JUDGMENT
- The plaintiff seeks to forfeit property, which has been restrained by Schmidt J on 28 June 2018. The forfeiture is under s 49 of the Proceeds of Crime Act 2002 (Cth).
- The evidence discloses that there are only two possible interested parties. One of those is Stuart Cole, who is represented today and consents to the forfeiture order being sought by the Commissioner. The other person is Anthony James Haddleton. He is not represented today and has not consented to the orders.
- The evidence discloses that he was served with the summons on 22 August 2017. At the time the Federal Agent who served Mr Haddleton had a conversation with him and told him that the documents pertained to the cash that was seized two years previously from him and Mr Cole. Mr Haddleton is reported to have said that it was not his cash, he was just an Uber driver. The agent said there was information in the paperwork that would let him know where and when he could claim ownership, if he wished to do so. He said, “No thanks”.
- The proceedings have been before the Court on a number of occasions since the return date on 21 September 2017. No claim has been made by Mr Haddleton.
- My attention has been drawn to s 316 of the Act, which enables a consent order to be made specifically in circumstances where a period of six months has not elapsed from the date of the restraining orders. That can be done if everyone whom the Court has reason to believe would be affected by the order has consented to it.
- The evidence tends to show that Mr Haddleton does not consider that he has an interest in the proceeds. He has made no application in respect of the property. Accordingly, I do not have reason to believe that he would be affected by the proposed orders.
- Further, s 49 does not stipulate, as a pre- condition to a forfeiture order, that the restraining order must have been in force for at least six months. Section 49(1) simply requires the Court to make an order if that condition is fulfilled as well as the other matters enumerated in subs (1).
- For those reasons I consider that the consent order put forward by the Commissioner should be made. The orders, therefore, are:
1. Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) the property specified in sch 1 to the consent order be forfeited to the Commonwealth.
2. Pursuant to s 69(2) of the Act the Commonwealth have leave to depose of or otherwise deal with the forfeited property immediately.
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DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 August 2018
My Client was working at a bar in Sydney and stole cash by pretending to put cash sales through the till by not recording the sales and putting the cash in his pocket. He did this over a number of shifts. My Client’s boss noted the discrepancy and obtained security camera evidence of my client pocketing the cash. My Client was subsequently arrested, strip searched and charged with two charges, one count of stealing property as a clerk/servant and one count embezzling as a clark/servant.
Upon sentencing we ensured that my client was only found guilty of one of the charges instead of two due to the duplicitous nature of the charges. Upon sentencing, we made submissions concerning the circumstances that led to my client’s offending, his behaviour before, during and prior to the offending. The remorse, contrition, rehabilitative efforts, and as to how the community could continue to be protected in the future from offending of this nature in a general sense and also what steps could be put in place to reduce the risk of my client reoffending in the future. In the circumstances, Her Honour was satisfied that no conviction, no community service, no fine and no period of imprisonment should be imposed. A great result for my client.
My Client was on a day out shopping at a large suburban shopping centre in Sydney. In an out of character decision, she decided to steal a range of expensive cosmetics and clothing. My Client was detected by security cameras and detained. Police were called and my client was subsequently charged with two counts of larceny.
The decision by my client to steal could have had broad ramifications on her future employment and travel plans as it would be potentially difficult to obtain employment with a criminal record involving acts of stealing.
My Client engaged our services and we set about trying to obtain a non-conviction based order for her. We advised her to seek psychological assistance with issues she was battling. In court we made submissions regarding remorse, contrition, rehabilitative steps, and why the purposes of criminal sentencing would be better served if this matter were dealt with by way of non-conviction. Her Honour was persuaded by our submissions and placed my client on a non-conviction based order meaning she does not have a criminal conviction against her name. A great result for my client.
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