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Court of Criminal Appeal 8 August 2008

ORD v R

[2008] NSWCCA 162

Fraud & dishonesty
CRIMINAL LAW COMMONWEALTH OFFENCES SOCIAL SECURITY FRAUD FEMALE OFFENDER WITH YOUNG CHILD

Citation: ORD v R [2008] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 8 August 2008
Judge(s): McClellan CJ at CL, James J, Fullerton J

Background

The appellant pleaded guilty in the District Court to nine offences of defrauding the Commonwealth by falsely claiming social security benefits, including family tax payments and parenting payments, over a period of more than four years between May 2000 and July 2004. The false basis for the claims was that she was the carer of twin daughters, when in fact the twins had been removed from her care on the day of her hospital discharge and placed with their grandparents. The total amount received was approximately $75,000, with around $70,000 remaining unrepaid.

The District Court sentenced the appellant to full-time custodial sentences for four of the offences, with a recognizance release order set to take effect after approximately ten months and two weeks. The appellant did not challenge the head sentences on appeal; her sole contention was that the release date should be brought forward.

The sentencing judge had found the offences objectively serious, while also noting significant mitigating factors: the appellant had pleaded guilty, demonstrated remorse, was drug-free by the time of sentence after a history linked to a coercive and abusive relationship, and had a young child. The case involved consideration of the Mothers and Children's Programme operated by the Department of Corrective Services.

  • Whether the sentencing judge gave insufficient weight to the combination of mitigating factors under s 16A(2)(m), (n) and (p) of the Crimes Act 1914 (Cth), including the impact of imprisonment on the appellant's young child
  • Whether insufficient weight was given to the role of the appellant's former partner in the commission of the offences
  • Whether the two-and-a-half-year delay between discovery of the offending and commencement of proceedings was adequately reflected in the sentence
  • Whether the sentence was manifestly excessive

Decision

On the first ground, the Court examined the sentencing judge's treatment of the appellant's young son James, born in 2005. Her Honour had considered the availability of the Mothers and Children's Programme, which allows eligible imprisoned mothers to have their child reside with them. The Court noted that the absence of any formal assessment of the appellant's suitability for the programme meant less specific information was available to the sentencing judge. However, the Court found that the sentencing judge's conclusions, including the likelihood of reunification with her child after approximately three months in the programme, were reasonably open on the evidence before her. The first ground was rejected.

On the second ground, the Court was satisfied the sentencing judge had expressly taken into account the appellant's abusive relationship and the role her former partner played in her drug use and offending. The Court reiterated the established principle that a ground of appeal asserting insufficient weight given to a factor clearly considered by the sentencing judge is difficult to sustain. That ground was dismissed.

On delay, the Court found that the sentencing judge had expressly recognised the two-and-a-half-year gap between discovery of the offending and the commencement of proceedings, and had taken into account the rehabilitation achieved during that period. The fourth ground, manifest excess, was conceded by counsel to depend on success on one of the earlier grounds; having rejected all three, the Court rejected this ground as well.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • General deterrence is a weighty consideration in social security fraud cases, and the Court of Criminal Appeal confirmed that a full-time custodial sentence will ordinarily follow upon conviction for such offending unless very special circumstances exist. Counsel for the appellant accepted this as a correct statement of principle.
  • A ground of appeal asserting that insufficient weight was given to a mitigating factor will rarely succeed where the sentencing court clearly identified and considered that factor in its remarks on sentence.
  • Where the Mothers and Children's Programme is relevant to sentencing, evidence of at least a provisional suitability assessment of the offender would assist the sentencing court, though its absence does not necessarily render the sentence inadequate or erroneous.
  • Delay between the discovery of offending and the commencement of proceedings is a recognised sentencing consideration, but its weight will depend on what rehabilitation occurred during that period and whether the sentencing judge properly took it into account.
  • In dismissing the appeal, the Court found no error in how the District Court balanced the multiple mitigating factors, including the appellant's abusive relationship history, drug dependency, plea of guilty, and the interests of her young child.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 29B (since repealed), 16A(2)
- Criminal Code (Cth), s 135.1(5)

Cases:
- R v Togias (2001) 127 A Crim R 23
- R v Togias (2002) 132 A Crim R 573