Citation: Hayman v R [2003] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 5 May 2003
Judge(s): Giles JA, Bell J, Carruthers AJ
Background
The applicant pleaded guilty in the District Court to two counts of social security fraud. The first count charged her with defrauding the Commonwealth by obtaining Centrelink benefits to which she was not entitled, contrary to s 29D of the Crimes Act 1914 (Cth). The second count charged her with dishonestly causing loss to the Commonwealth under s 135.1(5) of the Criminal Code. In both cases, she was ineligible for the benefits because she was living in a marriage-like relationship.
The applicant had separated from her de facto partner in July 1997 and began receiving social security payments. She reconciled with her partner some months later but did not inform the relevant authorities, and continued receiving benefits for an extended period. The total amount improperly obtained was a little over $50,000. There was evidence of deliberate concealment, including routing payments through her parents' address. The applicant attributed her conduct to financial pressure, a turbulent relationship, caring for three young children, and a developing gambling problem. She made full admissions upon detection, pleaded guilty promptly, and had no prior convictions.
At first instance, Woods ADCJ sentenced the applicant to 18 months' imprisonment on each count, to be served concurrently from 25 October 2002, with release on recognisance after 12 months. A reparation order for $48,705.30 was also made. The applicant sought leave to appeal against the sentence.
Legal Issues
- Whether the sentencing judge's discretion miscarried in determining the appropriate length of a custodial sentence for social security fraud
- Whether the use of charges carrying higher maximum penalties, when lesser charges were available, improperly influenced the sentence
- Whether the sentencing judge had failed to account for the absence of remissions, as required by s 16G of the Crimes Act 1914 (Cth)
- Whether the applicant's personal circumstances, including the impact of imprisonment on her three children, warranted a reduction in the length of the custodial term
Decision
Giles JA (with Bell J and Carruthers AJ agreeing) found that the sentencing judge's discretion had miscarried on two identifiable grounds. First, the applicant had been charged under s 29D of the Crimes Act 1914 (Cth), which carries a maximum of ten years' imprisonment, when s 29B of the same Act (maximum two years) was potentially available. The Crown was unable to provide a satisfactory explanation for the choice of the more serious charge. The Court found that this charging decision appeared to have influenced the sentencing range adopted by the judge, and that if the lesser charge had been considered, the sentence would likely have been lower.
Second, the Crown conceded that the sentencing judge's attention had not been drawn to the requirement under s 16G of the Crimes Act 1914 (Cth) to allow for the absence of remissions when fixing a federal sentence. The Crown also acknowledged, by reference to comparable cases, that the period of imprisonment imposed was at the upper end of the range for offences involving similar amounts of fraudulently obtained social security benefits.
The Court confirmed that the applicant's personal circumstances, including the turbulence of her relationship and the presence of three young children, did not constitute the "special or exceptional circumstances" required to avoid a custodial sentence altogether. However, those circumstances were properly taken into account when fixing the length of the term.
Acting on those considerations and on the sentencing judge's own stated intention to impose a sentence at the lower end of the scale, the Court re-sentenced the applicant to 12 months' imprisonment on each count, concurrently, with immediate release on a recognisance release order. As the applicant had by then served approximately six months in custody, she was eligible for immediate release.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentences imposed on 25 October 2002 set aside
- On each count, imprisonment for 12 months commencing 25 October 2002 and expiring 24 October 2003, sentences to be served concurrently
- Applicant to be released forthwith on a recognisance release order upon giving security of self in the sum of $500, without sureties
Key Takeaways
- The Court of Criminal Appeal found that charging an accused under a provision carrying a higher maximum penalty, when a lesser charge was available on the same facts, can improperly inflate the sentencing range if the distinction is not addressed at the sentencing hearing.
- Under s 16G of the Crimes Act 1914 (Cth), sentencing courts dealing with federal offences must account for the absence of remissions when fixing a term of imprisonment; failure to do so constitutes an error in the exercise of the sentencing discretion.
- Custodial sentences remain the general rule for social security fraud, and departure from that rule requires "special or exceptional circumstances"; financial pressure, a difficult domestic situation, and the presence of dependent children did not meet that threshold here.
- Personal circumstances falling short of "special or exceptional" are nonetheless relevant to fixing the length of a custodial term, not merely to whether one is imposed at all.
- No question of principle was identified in this decision; the outcome turned on the specific errors in the original sentencing exercise and the concessions made by the Crown on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16G, 29B, 29D
- Criminal Code (Cth), s 135.1(5)
Cases cited: No specific cases were cited by name in the judgment, though reference was made generally to the line of authority holding that custodial sentences should ordinarily be imposed for social security fraud.