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Court of Criminal Appeal 11 December 2008

Yarak v R

[2008] NSWCCA 298

Fraud & dishonesty
CRIMINAL LAW SINGLE PARENTING PAYMENTS EMPLOYMENT PLEA OF GUILTY EXPENDITURE BEYOND LIVING EXPENSES HARDSHIP IN SEPARATION FROM SON

Citation: Yarak v R [2008] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 11 December 2008
Judge(s): Giles JA, Latham J, Mathews AJ

Background

The applicant, a woman in her early thirties with no prior convictions, pleaded guilty to five charges arising from a single prolonged course of conduct. Between March 2000 and January 2007, she received Parenting Payment Single from Centrelink while employed and earning more than $228,000, which she failed to disclose. The total overpayment amounted to $75,075.

The first two charges were brought under s 29B of the Crimes Act (Cth) 1914 (imposing on the Commonwealth by untrue representation), which carried a maximum of two years' imprisonment. The remaining three charges were brought under s 135.1 of the Criminal Code 1995 (dishonestly causing a loss to a Commonwealth entity), which carried a maximum of five years. The charges arose from the same underlying conduct but reflected changes in the applicable legislation over time.

The applicant was sentenced in the Sydney District Court on 7 March 2008. The effective total sentence was two years' imprisonment, with release on recognisance after 15 months. She sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge failed to give sufficient weight to psychiatric evidence that the applicant was suffering from depression and a dissociative behavioural state at the time of offending
  • Whether insufficient allowance was made for the hardship caused to the applicant's son by her imprisonment
  • Whether the judge failed adequately to account for the applicant's remorse, rehabilitation, and low likelihood of reoffending
  • Whether the two 18-month sentences for the Criminal Code offences were individually manifestly excessive
  • Whether the total effective sentence of two years was manifestly excessive

Decision

On the psychiatric evidence, the Court found no error in the sentencing judge's treatment of the material. Two reports from Dr Robert Hampshire described the applicant as severely depressed and suggested a dissociative state may have contributed to her offending. However, the sentencing judge was not persuaded that the offending was caused by any mental condition, and the Court of Criminal Appeal found that conclusion was open on the evidence. In cross-examination, it emerged that significant sums had been spent on clothing, jewellery, hair salons, and makeup, which undermined the contention that payments were used only to survive. The Court noted that the psychiatric evidence fell short of establishing exceptional circumstances sufficient to reduce the sentences materially.

On family hardship, the Court acknowledged the difficult personal circumstances, including the applicant's separation from her young son and his dependence on her. However, the Court found the sentencing judge had taken these matters into account and that they did not rise to the level required to displace the otherwise appropriate sentences. The threshold of "exceptional circumstances" for this type of mitigating factor was not met.

On the question of manifest excess, the Court found the sentencing structure was appropriate given the differing maximum penalties and the distribution of amounts across the five charges. The final two Criminal Code charges alone accounted for nearly $65,000 of the total overpayment, and they covered a period of more than five years. Once the sentencing judge rejected the mental illness explanation, general deterrence became a weighty consideration, as the Court noted it ordinarily must be in Commonwealth fraud matters. The overall sentence was at the upper range for this type of offending, but the Court found the circumstances of the case placed it there. No error was established on any of the five grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that psychiatric evidence of depression and a possible dissociative state does not automatically reduce sentences for prolonged Commonwealth fraud; the sentencing judge must be satisfied the condition materially caused or contributed to the offending.
  • Where cross-examination reveals expenditure on non-essential items, a claimed inability to understand or control the offending behaviour becomes considerably harder to establish as a mitigating factor.
  • Hardship caused to a dependent child by a parent's imprisonment is a recognised sentencing consideration, but the Court confirmed it requires exceptional circumstances before it can substantially reduce an otherwise appropriate sentence.
  • General deterrence carries significant weight in Commonwealth social security fraud cases, particularly where the offending is prolonged, involves a substantial sum, and cannot be attributed to mental illness.
  • A higher sentence for later charges in a series is not inherently excessive where those charges involve greater amounts, carry higher maximum penalties, and reflect a more serious level of criminality than earlier charges in the same course of conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act (Cth) 1914, s 29B (imposing on the Commonwealth by untrue representation; maximum two years' imprisonment)
- Criminal Code 1995 (Cth), s 135.1 (dishonestly causing a loss to a Commonwealth entity; maximum five years' imprisonment)

Cases: No specific cases were cited in the portions of the judgment provided.