STATE OF TASMANIA v MARK RICHARD NICHOLAS 16 FEBRUARY 2024
COMMENTS ON PASSING SENTENCE PEARCE J
Mark Nicholas, you pleaded guilty to 23 counts of fraud and 36 counts of attempted fraud. In 2018 you knew a female who was employed by a large transport company as a recruitment consultant. She processed applications for persons who applied for work with her employer, in the course of which she had access to personal information and identification documents such as driver licences, Medicare cards, income tax payment summaries and debit and credit card details. You formed an intention to use such information for fraudulent purposes. You agreed with her that she would give you the information in return for a proportion of the dishonestly obtained proceeds.
You were given personal details of eight persons. Between 1 March 2018 and 10 September 2018, you used those names and details, and others you already had, to make 59 electronic applications to banks and other financial institutions for pre-approved credit, credit cards and loans. In each such application you falsely asserted that you were the person whose name was recorded in the application. You gave false details but used your own address or a nearby address to receive written communications. You used phone numbers which were either yours or the females to receive other communications concerning the applications. Your associate also gave you false payslips and other documents she generated to enable you to advance the applications.
Of those applications, 23 were approved resulting in the approval of credit facilities totalling $158,200. However those credit facilities were not drawn upon to their full extent. The State asserts that the benefit actually derived from those transactions was $36,085.63. Of that amount the female received $18,983.00 although you are criminally responsible for the taking of the total sum.
During the same time period you prepared and submitted 36 other applications using the same fraudulent method. The total credit facility applied for was at least $914,390 in the form of loans, credit cards and pre-approved credit. However all of those applications were declined based on internal credit checks and other factors. Each of those applications forms the basis of one count of attempted fraud.
On 17 July 2018, $4,000 in cash was retrieved from a safe in an address associated with the female and seized. Premises associated with you were first searched on 30 August 2018. Many fraudulent documents were located. At the unit you occupied the police found two laptops, a desktop computer, five mobile phones, 14 hard drives and USB drives, a quantity of SIM cards and a printer. At another address they found another two laptops and four mobile phones. Forensic analysis of the computers and hard drives revealed many false documents and other documents from which more fraudulent documents could be prepared. Notwithstanding the search on 30 August 2018 you submitted four more fraudulent credit applications before 8 September, three of which were approved. You were charged with one count on 15 October 2018 and then progressively with other counts resulting in your committal to this Court in July 2019, more than four years ago.
You are now aged 38. Your personal circumstances were outlined by your counsel and in a report I obtained about your suitability for the making of a home detention order. You are in a long term relationship. Until 2016 your record is mostly for traffic offences. On 11 May 2016 you were ordered to perform community service for a large number of bail, drug and drug related driving offences. On 12 July 2017 you were given a wholly suspended six month term of imprisonment for drug and firearm offences, including trafficking. On 31 October 2020 another suspended sentence was imposed for further bail and drug related offending. You breached both the community service order and the suspended sentences by re-offending and in March 2021 you were sentenced to imprisonment for 16 months from 15 March 2021. You were found guilty of aggravated burglary and stealing committed in December 2018. Then, on 10 December 2021 you were sentenced to imprisonment for two months from 14 November 2021 for 38 counts of compute related fraud. Those offences were committed in January 2019 and involved dishonest use of a stolen credit card. They are not prior convictions for sentencing purposes but are relevant to totality and delay.
As your record, and these crimes, suggest, you had a substantial problem with illicit drugs until your imprisonment in 2021. The female I have referred to sold drugs, initiated the criminal conduct and took advantage of your addiction to obtain your participation. You then facilitated the crimes by your knowledge of computers and use of your addresses. You have a degree in information technology and business management. For a reason which has not been explained criminal proceedings against the female were ceased. You feel aggrieved that she has not been punished but I cannot determine why that may be so. I am informed by your counsel that you first attempted to resolve these charges by pleading guilty on a suggested factual basis in August 2020, but, for various reasons, the proposals were rejected by the prosecution. Despite continuing attempts at resolution no indictment was filed until early 2022 and when the charges were eventually resolved it was substantially on the basis initially proposed by you. Delay is not mitigating per se, but in some cases it can be a substantial mitigating factor. Little of the delay here was caused by you. Part of it results from the difficulty of investigating complex fraud cases, the substantial demand that such matters place on limited police resources and the requirement for detailed consideration of particular details of the charges against you. The nature of your role was in issue. However, there is a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable and there is a serious incongruity between the assertion that an offence or offences are serious and a leisurely progression of the proceedings. Moreover, since your release on parole in early 2022 there has been a real demonstration of your rehabilitation. There has been no further offending. There were no breaches of parole. You have a strong employment history including with money handling. Apart from some casual work you are not presently employed but until recently you were working for a fuel company to oversee a number of businesses in Launceston.
The crimes for which you are now to be sentenced involved much relatively sophisticated planning and multiple dishonest acts, both via electronic means and in person. The use of private information given in the circumstances which applied here means that general deterrence is a very strong sentencing factor. However, in light of your plea of guilty, the delay not attributable to you and the now strong signs of your rehabilitation I have decided that a sentence other than actual imprisonment is appropriate. Home detention for a significant period will carry with it a strong punitive element while allowing you to remain in the community to a restricted extent. The maximum period of home detention which may be ordered is 18 months. The period of home detention for you should be something approaching that period.
You are convicted on each count on the indictment. I make compensation orders in favour of Westpac Banking Corporation in the sum of $32,820.94 and Bank of Queensland in the sum of $6,068.29. You have 28 days to pay those sums although you may enter into a repayment arrangement. I am satisfied that the sum of $4,000 seized on 17 July 2018 is tainted property as the proceeds of crime and that no hardship will result from its forfeiture. I order, pursuant to the Crime (Confiscation of Profits) Act 1993, s 16(1) that the money is forfeited to the State. I am satisfied that the following seized items are tainted property as the proceeds of crime and that no hardship will result from their forfeiture:
- items 1 and 2 on property seizure record receipt 175752;
- items 1 to 17 and 21 to 27 on property seizure record receipts 175973 and 175975;
- item 1 on property seizure record receipt 71172;
- items 1 to 12 and 37 to 45 on the miscellaneous property list.
I order, pursuant to the Crime (Confiscation of Profits) Act 1993, s 16(1) that those items are forfeited to the State.
I impose one sentence. I make a home detention order. The operative period of the order is 15 months from today. I specify the premises at which you are to reside during the operational period of the order as [home detention premises]. I order that immediately upon your leaving Court you report to the office of Community Corrections at 111 Cameron Street Launceston, for induction into this order, and a further explanation as to its full terms. There will be conditions that during the operational period of the order:
(a) you must not commit an offence that is punishable by imprisonment;
(b) you must reside at the home detention premises;
(c) you must be at the home detention premises at all times unless:
- you are travelling to or from, or are at, premises at which you are seeking urgent medical treatment or dental treatment; or
- because it is necessary to not be on the premises in order to avoid, or minimise a serious risk of, the death of, or injury to, you or another person; or
- with the approval, of a probation officer or prescribed officer, given –
(i) so as to enable you to comply with a special condition; or
(ii) so as to enable you to seek or engage in employment; or
(iii) so as to enable you to attend an educational or training course or activity; or
(iv) so as to enable you to attend a rehabilitative or re-integrative activity or program; or
(v) so as to enable you to attend a court; or
(vi) for any other purpose approved by the probation officer or prescribed officer.
(d) you must permit a police officer, probation officer or prescribed officer to enter the home detention premises;
(e) you must permit a police officer to –
(i) conduct a search of the home detention premises; and
(ii) conduct a frisk search, within the meaning of the Search Warrants Act 1997 , of you, at the home detention premises or at any other place or premises; and
(iii) take a sample of a substance found on the home detention premises or on the person of you;
(f) you must comply with any reasonable and lawful directions of a probation officer or prescribed officer, including any directions as to the kind of employment, or the place of employment, of you;
(g) you must submit to electronic monitoring, including by wearing or carrying an electronic device and:
(i) you must not, nor permit another person to, tamper with, damage or disable any device used for the purpose of the electronic monitoring; and
(ii) you must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring including in relation to the installation, attachment or operation of a device or system used for the purpose of electronic monitoring by a police officer, a probation officer or prescribed officer or another person whose functions involve the installation or operation of a device or system used for the purposes of electronic monitoring;
(h) you must, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of an illicit drug;
(i) you must, if directed by a probation officer or prescribed officer to engage in a personal development activity, counselling, or treatment, engage in the activity, counselling or treatment in accordance with any directions given by the probation officer or prescribed officer;
(j) you must submit to the supervision of a Community Corrections officer as required by that officer;
(k) you must not take any illicit or prohibited substances. Illicit and prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, and any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
(l) you must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times.
This order comes into effect immediately. You must understand that if you do not comply with the conditions, imprisonment is likely. If you breach the order by committing an offence, the order must be cancelled unless there are exceptional circumstances, and in that case imprisonment would be highly likely.