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Court of Criminal Appeal 22 June 2005

Regina v Wood

[2005] NSWCCA 233

Fraud & dishonesty
CRIMINAL LAW SENTENCE SOCIAL SECURITY FRAUD SHORT CUSTODIAL SENTENCES IMPOSED CUSTODIAL SENTENCES

Citation: Regina v Wood [2005] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 22 June 2005
Judge(s): Spigelman CJ, Hunt AJA, Howie J

Background

The applicant was a woman in her early seventies who had pleaded guilty to four counts of social security fraud spanning more than fourteen years. The fraud involved obtaining a widow's pension under a former married name while simultaneously being lawfully married to another man, and later collecting two separate age pensions simultaneously under different names. Over that period she received approximately $151,170 to which she was not entitled.

By the time of sentencing, the applicant had fully repaid the fraudulently obtained funds, selling most of her possessions and borrowing the balance from her children. The sentencing judge in the District Court accepted that the offending arose from pressing need rather than greed, and that the repayment represented a significant burden on her.

Despite the applicant's age (71 at sentencing), poor health, and depression, Hosking DCJ imposed four concurrent and cumulative one-month sentences of imprisonment, totalling three months. The applicant was granted bail pending her appeal to the Court of Criminal Appeal.

  • Whether evidence of the likely severe impact of a custodial sentence on the applicant's intellectually disabled adult daughter (referred to as Kaylene) was so exceptional as to require a non-custodial sentence.
  • Whether the sentencing judge otherwise erred in the exercise of his discretion in imposing short custodial sentences rather than a non-custodial alternative.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, though leave to appeal was granted.

On the question of the daughter's welfare, the Court examined whether the impact on the dependent daughter was sufficiently exceptional to displace the need for a custodial sentence. The Court acknowledged that hardship to innocent third parties can be a relevant mitigating factor in sentencing, but found that the evidence did not rise to the level required to compel a non-custodial outcome. New material about arrangements made for the daughter's care was considered on appeal, but the Court found this did not materially alter the analysis.

On the broader question of manifest excess, the Court found that the sentencing judge had already substantially discounted the sentence by reason of the various subjective factors favouring the applicant. Having reduced the sentence to that point, the judge was entitled to conclude it was not appropriate to reduce it further to a non-custodial option. The Court found no error in the exercise of that discretion.

The Court also noted, without criticism, that the sentencing regime applicable to Commonwealth offences does not carry the same statutory requirement as State offences (under s 5(2) of the Crimes (Sentencing Procedure) Act 1999) to give reasons for imposing a term of six months or less rather than a non-custodial alternative.

Orders Made

  • Leave to appeal granted; appeal dismissed.
  • Sentences recommenced from 22 June 2005 (the date of the appeal decision), given the applicant had been on bail and had not served any part of the original sentences:
  • Count 1: 22 June 2005 to 21 July 2005
  • Count 2: 22 July 2005 to 21 August 2005
  • Counts 3 and 4: 22 August 2005 to 21 September 2005 (concurrent with each other)
  • The applicant was to be taken into custody immediately.

Key Takeaways

  • Hardship to innocent third parties, including a dependent with an intellectual disability, is a relevant sentencing consideration but does not automatically displace a custodial sentence. The evidence of exceptional hardship must be of a quality and degree sufficient to warrant departing from an otherwise appropriate term of imprisonment.
  • In dismissing the appeal, the Court confirmed that a sentencing judge who has already substantially reduced a sentence on account of subjective mitigating factors is entitled to stop short of eliminating the custodial component altogether.
  • Full repayment of fraudulently obtained funds prior to sentencing is a significant mitigating factor, capable of placing an offender in a different category from those who repay nothing. It does not, however, automatically preclude a custodial sentence in cases of serious and prolonged offending.
  • No error was established simply because reasonable minds might differ on whether three months imprisonment or a non-custodial sentence was the more appropriate response. The Court will not interfere with a sentencing discretion that has been properly exercised.
  • Where an applicant is on bail pending appeal and the appeal is dismissed, the Court of Criminal Appeal will recommence sentences from the date of the appeal decision, specifying precise commencement and expiration dates for each count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29D
- Criminal Code 1995 (Cth), s 135.1(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(2)

Cases:
- R v Bednarz [2000] NSWCCA 533
- R v Aller [2004] NSWCCA 378
- Markarian v The Queen (2005) 215 ALR 213