Peter Van Dyk wins appeal in Queanbeyan District Court after defrauding mother

Peter Van Dyk was sentenced to 14 months in jail, with a seven-month non-parole period, in November last year.

At the time, magistrate Roger Clisdell said Van Dyk's actions were "beyond any forgiveness".

On Thursday, Van Dyk successfully appealed his jail sentence in Queanbeyan District Court. He had been granted bail upon filing an appeal hours after he was sent to jail.

Judge Robyn Tupman quashed the previous sentence and ordered Van Dyk to serve a 14-month intensive correction order.

She said the 68-year-old would not receive the same level of medical care in jail as he would in the community.

The court heard Van Dyk had Parkinson's disease, as well as other medical conditions, and needed a carer.

"His rehabilitation is much more likely to be successful in the community than in jail," Judge Tupman said.

Police facts state Van Dyk, the youngest son of Carola Van Dyk, took on the responsibility of enduring power of attorney for his mother in January 2015 as a result of her dementia.

The following month, Mrs Van Dyk's home in Orange was sold and she moved in with her son in Queanbeyan.

After Mrs Van Dyk died in a nursing home in June 2020, at the age of 91, the offender spoke with his estranged brother, Joseph, about the execution of her will.

The two sons had been named equal beneficiaries.

Peter Van Dyk told his brother there was "very little money" left in their mother's estate, prompting his sibling to lodge a fraud report with police.

Police found Peter Van Dyk had defrauded his mother of $132,243.52, across 226 fraudulent transactions, between December 2015 and June 2020.

He stole most of the money while his mother was alive but continued after her death.

He had previously pleaded guilty to a charge of obtaining a financial advantage by deception.

This became a matter of contention in court on Thursday.

Defence lawyer Kim Bolas said her client maintained he had consent to access the money.

Judge Tupman claimed this belief was not consistent with a guilty plea, and "ought to have been noticed in the Local Court".

In response, Ms Bolas tried to withdraw the severity appeal and, instead, appeal the conviction. However, the required timeframe to do so had passed.

Judge Tupman found Van Dyk's mother could not have consented due to her dementia, and chose to ignore the contrary statement.

The court heard Peter Van Dyk had used the money to feed his gambling addiction, and also to fund weekend getaways and shopping sprees at Chemist Warehouse, Millers, Best and Less, and Best Friends Pets, among other stores.

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Despite ordering Peter Van Dyk pay his brother Joseph compensation in the sum of $122,973.32, Judge Tupman said the money was "never likely to be paid".

Ms Bolas told the court the 68-year-old was renting, had no assets, nothing to sell and was not able to repay his brother.

Judge Tupman found the fraud was "a form of elder abuse" and involved a significant breach of trust.

"[The mother was] deprived of her assets and deprived of the right to dispose of them as she saw fit in her will," Judge Tupman said.

The court heard Peter Van Dyk had been convicted of rape in 1974 and had served at least four years behind bars.

The court found while the offender had a criminal history and "was not of good character" he had not committed more crimes until the most recent offences.

Judge Tupman said Peter Van Dyk's recent crimes were "committed in very particular circumstances".

"[These] circumstances are highly unlikely to occur again to the offender," she said.

Van Dyk was also ordered to undergo financial counselling and treatment for his gambling addiction.

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