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Court of Criminal Appeal 13 July 2007

Johnsson v Regina

[2007] NSWCCA 192

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE SENTENCE COMMONWEALTH OFFENCES APPROPRIATE POWER TO MAKE SUCH ORDERS SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Johnsson v Regina [2007] NSWCCA 192
Court: New South Wales Court of Criminal Appeal
Date: 13 July 2007
Judges: Beazley JA, Grove J, Simpson J

Background

The appellant pleaded guilty in the District Court at Goulburn to four Commonwealth offences: two counts of dishonestly obtaining a gain from a Commonwealth entity and two counts of defrauding a Commonwealth public authority. The offending involved her continuous failure, over approximately eight years, to declare employment income to Centrelink while receiving social security benefits including a supporting parent's pension and, later, a Newstart allowance. During that period she received over $200,000 in employment income that she did not disclose, and the calculated overpayment of benefits totalled approximately $61,772.

The offending was detected in 2005 through a data-matching exercise with the Australian Taxation Office. The appellant made 42 false or misleading statements to Centrelink across the relevant period and lodged review forms expressly denying she had performed any work.

Bennett DCJ sentenced the appellant to a total of three years' imprisonment, with release on recognizance after serving 27 months, and directed that the custodial portion be served by way of periodic detention. The appellant sought leave to appeal, contending the sentence was both structurally flawed and manifestly excessive.

  • Whether the sentencing judge erred in imposing a sentence of periodic detention as part of a recognizance release order under the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred in stating the wrong statutory source when making the recognizance release order
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Ground 1: Periodic detention and the recognizance release order

Because the aggregate sentences did not exceed three years, s 19AC of the Crimes Act 1914 (Cth) obliged the sentencing judge to make a recognizance release order and prohibited him from fixing a non-parole period. The Court found that the order for periodic detention was properly made as part of that structure. The overall effect was a head sentence of three years' imprisonment, with release on recognizance after 27 months, served by way of periodic detention.

Ground 2: Mistaken statutory reference

The sentencing judge referred to s 20(1)(b) of the Crimes Act 1914 (Cth) as the source of his power to make the recognizance release order. The Court found this reference was incorrect, noting the obligation arose from s 19AC. However, drawing on Putland v The Queen, the Court held that a mistaken citation of the statutory source is inconsequential where the judge's power to act existed under another provision and the order made was appropriate in the circumstances.

Ground 3: Manifest excess

The Court applied the established principle that a custodial sentence is the general rule in cases of social security fraud, with periodic detention considered a lenient form of custody. The sentencing judge found the circumstances sufficiently exceptional to warrant periodic detention rather than full-time custody, and the Court of Criminal Appeal saw no error in that finding. Taking into account the duration of the offending, the numerous false statements, the limited genuine remorse shown by the appellant, and the modest mitigation available, the Court concluded the sentence was within the proper range and was not manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under s 19AC of the Crimes Act 1914 (Cth), where a federal offender's aggregate sentence does not exceed three years, the sentencing court is obliged to make a recognizance release order and must not fix a non-parole period.
  • A mistaken reference to the wrong statutory provision when making an order does not invalidate that order, provided the power to make it existed under another provision and the order was otherwise appropriate: Putland v The Queen (2004) 218 CLR 174 applied.
  • The general sentencing rule for social security fraud is that a custodial sentence should be imposed, with periodic detention reserved for sufficiently exceptional circumstances: R v Winchester (1992) 58 A Crim R 345 applied.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that ordering imprisonment by periodic detention, while available in appropriate cases, carries a recognised degree of leniency compared to full-time custody.
  • Limited remorse and an offender's tendency to attribute responsibility for the offending to the victim agency, rather than acknowledging personal fault, will attract little mitigating weight at sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 135.1
- Crimes Act 1914 (Cth), ss 19AC, 20(1)(b), 29D
- Crimes Regulations 1990
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Putland v The Queen (2004) 218 CLR 174
- R v Bernier [1998] 102 A Crim R 44
- R v Caradonna [2000] NSWCCA 398
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Smith [2004] QCA 417
- R v Sofer [1993] 70 A Crim R 570
- R v Togias [2001] 127 A Crim R 23
- R v Winchester [1992] 58 A Crim R 345