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6
Court of Criminal Appeal 13 December 2006

Bick v Regina (Commonwealth)

[2006] NSWCCA 408

Fraud & dishonesty
CRIMINAL LAW CRIMINAL APPEAL COMMONWEALTH OFFENCES SOCIAL SECURITY FRAUD PAROLE PERIOD WHETHER RATIO OF NON

Citation: Bick v Regina (Commonwealth) [2006] NSWCCA 408
Court: NSW Court of Criminal Appeal
Date: 13 December 2006
Judge(s): Hodgson JA, Howie J, Price J

Background

The appellant was sentenced in the District Court in November 2005 after pleading guilty to 14 Commonwealth offences involving social security fraud. The offences spanned more than eleven years, from August 1992 to May 2004, during which he fraudulently obtained $309,351 in Commonwealth benefits using five false names, fabricated documents, and multiple bank accounts. The fraud was only uncovered through a computer selection exercise by Centrelink, and at the time of arrest he was still receiving payments under three false identities.

The sentencing judge described the offences as having "considerable objective gravity" and characterised them as "a relatively sophisticated series of crimes" committed out of greed. An aggregate effective head sentence of four years and six months was imposed, with a single non-parole period of three years and six months.

The appellant sought leave to appeal on the single ground that the non-parole period was excessive.

  • Whether the sentencing judge erred in setting a non-parole period that represented approximately 77.78 percent of the aggregate head sentence
  • Whether that ratio departed impermissibly from the usual range of 60 to 66 percent recognised in prior Court of Criminal Appeal decisions
  • Whether the absence of express reasons for departing from the usual range constituted appellate error

Decision

Price J (with whom Hodgson JA and Howie J agreed) confirmed that there is no statute or binding precedent requiring a non-parole period to bear any fixed proportion to a head sentence for Commonwealth offences. While this Court has ordinarily considered a ratio in the range of 60 to 66 percent appropriate, that range is not a rigid ceiling and higher percentages can stand.

Several factors bear on the appropriate ratio, including the seriousness of the offending, prospects of rehabilitation, the length of the head sentence relative to the permissible range, and the need for general deterrence. Price J noted that the courts have long emphasised general deterrence as a significant consideration in social security fraud cases.

On the facts, Price J found that the appellant's criminality was of a high degree, involving more than eleven years of planned dishonesty, large-scale fraudulent gain, and prolonged evasion of detection. The pre-sentence report expressed limited optimism about rehabilitation prospects. Although the head sentence was not at the upper end of the available range, those circumstances supported the elevated non-parole ratio.

Hodgson JA observed it would have been preferable for the sentencing judge to articulate reasons for departing from the usual range. However, an experienced sentencing judge's failure to mention such a matter is not conclusive of a failure to have considered it. The Court was not persuaded that the non-parole period warranted intervention under section 6(3) of the Criminal Appeal Act 1912, which requires the court to be of the opinion that some other sentence was warranted in law and should have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The 60 to 66 percent ratio for non-parole periods in Commonwealth offences represents a usual range rather than a mandatory ceiling; higher ratios are permissible where the circumstances warrant them.
  • Factors relevant to the appropriate ratio include the seriousness of the offending, rehabilitation prospects, the position of the head sentence within the available range, and the need for general deterrence.
  • General deterrence carries particular weight in social security fraud cases, as affirmed by the Court of Criminal Appeal across a line of decisions over many years.
  • An experienced sentencing judge's failure to state express reasons for departing from the usual non-parole ratio does not automatically establish error on appeal, particularly where the circumstances themselves provide a clear basis for the departure.
  • In dismissing the appeal, the Court confirmed it would not intervene unless it was of the opinion that some other sentence was warranted in law and should have been passed, consistent with section 6(3) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 19AB(1), 29D
- Criminal Code 1995 (Cth), s 135.1(5)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Bernier v The Queen (1998) 102 A Crim R 44
- R v Behar (NSWCCA, 14 October 1998, unreported)
- R v Carr (2002) 135 A Crim R 171
- R v Drazkiewicz (NSWCCA, 23 November 1993, unreported)
- R v Ida Ronen, Nitzan Ronen, Izhar Ronen [2006] NSWCCA 123
- R v John Viana [2001] NSWCCA 171
- R v Mears (1991) 53 A Crim R 141
- R v Meloh [2001] NSWCCA 211
- R v Price [2004] NSWCCA 186
- R v Purdon (NSWCCA, 27 March 1997, unreported)
- R v Sweet (2001) 125 A Crim R 341
- Stitt v The Queen (1998) 102 A Crim R 428