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Court of Criminal Appeal 30 May 2003

Regina v Martinsen

[2003] NSWCCA 144

Fraud & dishonesty
DEFRAUDING THE COMMONWEALTH ILLNESS OF APPLICANT WHETHER ANY LESSER SENTENCE WARRANTED.

Citation: Regina v Martinsen [2003] NSWCCA 144
Court: New South Wales Court of Criminal Appeal
Date: 30 May 2003
Judge(s): Sheller JA, Hidden J, Carruthers AJ

Background

The appellant pleaded guilty in the District Court to defrauding the Commonwealth under section 29 of the Crimes Act 1914 (Cth). Over approximately ten years, he claimed and received Social Security benefits under two names, accumulating nearly $80,000 in payments to which he was not entitled. Two related offences of opening and operating a bank account without proper disclosure were also taken into account at sentence.

The District Court sentenced him to two years' imprisonment, with release on recognizance after sixteen months. A reparation order of approximately $78,000 was also made. The appellant then sought leave to appeal against the sentence, arguing that insufficient weight had been given to his age and poor health.

At the time of the appeal, the appellant was 59 years old, had no prior convictions, and suffered from a range of serious medical conditions including chronic airways disease, osteoporosis, peripheral neuropathy, and deteriorating vision from cataracts and glaucoma.

  • Whether the sentencing judge gave adequate weight to the appellant's age and state of health in fixing the custodial period of sixteen months.
  • Whether the judge's failure to refer to the appellant's eye condition constituted an error in sentencing.
  • Whether any lesser sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912, having regard to all circumstances including evidence of deterioration in the appellant's health since entering custody.

Decision

The Court granted leave to appeal but dismissed the appeal. Hidden J (with Sheller JA and Carruthers AJ agreeing) accepted that the sentencing judge's remarks understated the seriousness of the appellant's health condition and that no reference had been made to his deteriorating eyesight. New evidence before the Court of Criminal Appeal confirmed that his condition had worsened considerably since sentencing, including severe pain from his back condition and significant loss of vision.

The Court acknowledged that illness is a recognised mitigating factor in sentencing, particularly where it makes the experience of imprisonment more burdensome. The evidence before the Court of Criminal Appeal did demonstrate that the appellant's custodial experience was genuinely more onerous than the sentencing judge appeared to appreciate.

However, the Court concluded that intervention was not warranted. The underlying offending was serious: systematic fraud over an extended period, supported by a volume of false documentation. The head sentence of two years was unchallenged and characterised as moderate. The sixteen-month custodial period was consistent with the norm for non-parole periods in Commonwealth offences, representing two-thirds of the total sentence.

Critically, the Court noted that the appellant was due for release on recognizance in less than five months from the date of the appeal. Even making full allowance for the appellant's illnesses, a custodial period of that length remained an appropriate reflection of the criminality involved. The Court was not persuaded that any lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Illness is a recognised mitigating factor in sentencing where it renders the offender's experience of custody more burdensome, but its weight depends on the facts of each case.
  • The Court of Criminal Appeal confirmed that fresh evidence of health deterioration since sentencing may be received on the merits of a sentence appeal, where the evidence goes to the significance of material that was before the sentencing judge.
  • In dismissing the appeal, the Court found that even where a sentencing judge has understated the seriousness of an offender's health condition, intervention is not automatic: the remaining custodial period, the gravity of the offending, and the overall proportionality of the sentence all remain relevant considerations.
  • A sixteen-month custodial period within a two-year head sentence is consistent with the norm for non-parole periods in Commonwealth offences, as established in R v Bernier (1998) 102 A Crim R 44.
  • Systematic fraud sustained over a decade, supported by false documentation and resulting in a significant financial gain, will attract meaningful custodial terms that health conditions alone may not be sufficient to reduce.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16BA, 21B, 29
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Financial Transaction Reports Act 1988 (Cth), s 24

Cases:
- R v Bailey (1988) 35 A Crim R 458
- R v Bernier (1998) 102 A Crim R 44
- R v L (NSW Court of Criminal Appeal, unreported, 17 June 1996)
- R v Smith (1987) 44 SASR 587