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5
Court of Criminal Appeal 5 November 2004

Regina v Aller

[2004] NSWCCA 378

Fraud & dishonesty
SENTENCE CROWN APPEAL DEFRAUDING THE COMMONWEALTH WHETHER SUSPENDED SENTENCE JUSTIFIED IMPORTANCE OF GENERAL DETERRENCE.

Citation: Regina v Aller [2004] NSWCCA 378
Court: New South Wales Court of Criminal Appeal
Date: 5 November 2004
Judge(s): Hulme J, Buddin J, M W Campbell AJ

Background

The respondent, an elderly woman, had pleaded guilty in the District Court to two counts of defrauding the Commonwealth. She had claimed social security payments under a false identity over a period spanning roughly 1983 to 2003, collecting benefits concurrently under her own name and under an assumed name.

At sentencing, District Court Judge Charteris imposed two-year terms of imprisonment on each count, to be served concurrently, but immediately suspended those terms by ordering the respondent's release on a recognisance of $1,000, conditioned on five years of good behaviour. The sentencing judge was persuaded that the respondent's circumstances were sufficiently exceptional to depart from the usual requirement of full-time custody for this category of offence.

The Crown appealed to the Court of Criminal Appeal, contending the sentences were manifestly inadequate. The respondent was in poor health, was advanced in age, and was the sole carer of her seriously disabled adopted son, who was unable to care for himself.

  • Whether the suspended sentence (recognisance release order) imposed by the District Court was manifestly inadequate given the established principle that custodial sentences are expected for social security fraud.
  • Whether the sentencing judge's finding that exceptional circumstances existed was one that was open on the evidence.
  • Whether the sentencing judge erred by not explicitly considering periodic detention as an intermediate sentencing option before imposing a suspended sentence.
  • The weight to be given on appeal to a primary judge's finding of exceptional circumstances.

Decision

Campbell AJ (with whom Buddin J agreed) confirmed that, as a matter of firmly established principle, social security fraud ordinarily requires a full-time custodial sentence. The courts have long held that the social security system's reliance on trust and self-reporting makes it especially vulnerable to abuse, and general deterrence is an extremely important consideration in sentencing for these offences.

The Court accepted, however, that very exceptional cases can justify a lesser penalty. The Crown conceded that the sentencing judge had found exceptional circumstances as a matter of fact, and also conceded that to succeed on appeal, it needed to show that finding was not open on the evidence. The sentencing judge had found that the combination of the respondent's advanced age, ill health, and her role as sole carer for a seriously disabled son amounted to extraordinary circumstances warranting departure from the usual sentencing approach.

The Court found that finding was open to the sentencing judge on the evidence before him. Detailed character and medical evidence had been presented, including testimony from a sister described as a very impressive witness, confirming that the disabled son could not cope without his mother's care. The Court was not persuaded that the sentencing judge had erred.

On the question of periodic detention, the Court acknowledged that the sentencing judge would have been better served by expressly explaining why he did not adopt that intermediate option. Nevertheless, the Court inferred from the overall reasoning that the sentencing judge had concluded that the respondent's age and ill health made periodic detention unworkable in practice, and that frequent changes of regime would deprive her son of essential care.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Social security fraud in NSW courts ordinarily demands a full-time custodial sentence, absent very special or exceptional circumstances; general deterrence carries extremely significant weight in this sentencing category.
  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a sentencing judge's finding of exceptional circumstances is a factual finding, and an appellate court can only intervene where no basis exists for that finding, or where identifiable error is shown.
  • Hulme J expressly declined to endorse remarks in R v Hinton suggesting that appellate courts are severely constrained in assessing whether circumstances are "exceptional," noting that characterising circumstances as exceptional is not the same as a finding of primary fact, and that an appellate court is equally well placed to make that assessment.
  • A combination of factors, including advanced age, serious ill health, and being the sole carer of a severely disabled dependant, was sufficient on the facts of this case to constitute exceptional circumstances justifying departure from the usual custodial sentencing approach.
  • Where a sentencing judge considers but does not expressly address an intermediate sentencing option such as periodic detention, that omission will not necessarily constitute error if the overall reasons support a clear inference as to why that option was not adopted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(2)(p), 20(1)(b), 29D
- Criminal Code Act 1995 (Cth), s 134.2(1)

Cases:
- R v Purdon (unreported, CCA, 27 March 1997)
- R v Luu (unreported, CCA, 7 December 1984)
- R v Medina (unreported, CCA, 29 May 1990)
- R v Sopher (1993) 70A Crim R 57
- R v Hinton (2002) 134 A Crim R 286
- R v Keir [2004] NSWCCA 106
- R v Togias (2001) 127 A Crim R 23