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Court of Criminal Appeal 12 June 2009

GRENFELL, Richard Gerald v R

[2009] NSWCCA 162

Also reported as 196 A Crim R 145
Fraud & dishonesty
CRIMINAL LAW SENTENCING EFFECTIVE NON WHETHER SENTENCES MANIFESTLY EXCESSIVE NO ERROR FOUND.

Citation: Grenfell, Richard Gerald v R [2009] NSWCCA 162
Court: New South Wales Court of Criminal Appeal
Date: 12 June 2009
Judge(s): Campbell JA, Latham J, Harrison J

Background

The applicant, a 77-year-old man suffering from progressive optic atrophy, hypertensive nephrosclerosis, and lumbo sacral degeneration, pleaded guilty to seven charges of social security fraud in the District Court. The fraud spanned approximately 28 years, from 1978 to 2006, and involved the creation of a false identity to claim a second social security benefit to which he was not entitled. The total amount fraudulently obtained was $203,669.21.

The District Court sentenced the applicant to an effective head sentence of four years and six months, with all sentences to be served concurrently. The sentencing judge fixed a single non-parole period of two years and eight months. The applicant sought leave to appeal the sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to account for a legislative change in maximum penalties as between s 29D of the Crimes Act 1914 (Cth) and s 135.1(2) of the Criminal Code Act 1995 (Cth), which Parliament may have intended to signal a changed approach to sentencing for this type of offence
  • Whether the sentencing judge gave insufficient weight to the applicant's age, medical conditions, and disabilities
  • Whether the sentences were manifestly excessive

Decision

Ground 1: Legislative change and maximum penalties. The applicant argued that the replacement of s 29D of the Crimes Act (which carried a maximum of 10 years) by s 135.1(5) of the Criminal Code (which carries a maximum of 5 years) reflected a Parliamentary intention to treat such offending less seriously. Campbell JA rejected that premise. The Explanatory Memorandum accompanying the Criminal Code did not suggest the old penalty was too high. Crucially, the Criminal Code also contains s 134.1, which addresses fraud involving deception and retains a maximum penalty of 10 years, identical to the old s 29D. The applicant's conduct, involving a false identity and repeated deception, plainly fell within the ambit of s 134.1. The prosecutor's choice to charge under s 135.1 rather than s 134.1 did not indicate that Parliament viewed the conduct as less serious.

Ground 2: Applicant's medical condition. Harrison J, with the agreement of the other judges, found that the sentencing judge had taken the applicant's medical conditions and age into account. No error was identified in the weight afforded to those factors.

Ground 3: Manifest excess. The court found the sentences were within the range appropriate for offences of this character. The offending persisted over 28 years, involved premeditated use of a false identity, and ceased only upon detection. The court noted that the complete absence of any accumulated (that is, consecutive) sentences amounted to a significant overall reduction in the total penalty. The sentences were not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A reduction in the maximum penalty under a successor provision does not automatically signal a Parliamentary intention to treat equivalent conduct more leniently, particularly where another provision in the same legislation carries the same maximum penalty as the former offence.
  • The prosecutor's choice to charge under a lower-penalty provision, rather than an equivalent higher-penalty provision, does not constitute an acknowledgment that the underlying conduct is less serious than it would have been under the former law.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reinforced that systematic, long-running social security fraud involving false identities attracts substantial sentences, consistent with established principles of general deterrence.
  • Where all sentences are ordered to be served concurrently rather than consecutively, that concurrency itself represents a meaningful reduction in the overall punishment and is a relevant factor when assessing whether a total sentence is excessive.
  • Age and serious medical conditions are relevant subjective factors in sentencing, but their presence does not automatically produce a finding of error where the sentencing judge has demonstrably taken them into account.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 29B, 29D, 19AB
- Criminal Code Act 1995 (Cth), ss 134.1, 134.2, 135.1(5)
- Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 1999 (Cth)
- Criminal Appeal Act 1912

Cases:
- Charkawi v R [2008] NSWCCA 159
- Bick v R [2006] NSWCCA 408
- R v De Vroome (1987) 38 A Crim R 146
- R v Hinton [2002] NSWCCA 405, (2002) 134 A Crim R 286
- R v Keir [2004] NSWCCA 106
- R v Purdon (Court of Criminal Appeal, 27 March 1997, unreported)
- R v Ronen [2006] NSWCCA 123, (2006) 161 A Crim R 300
- R v Smith (1987) 44 SASR 587
- R v Sopher (1993) 70 A Crim R 570
- Rutkowskyj v R [2008] NSWCCA 10
- SZ v R [2007] NSWCCA 19, (2007) 168 A Crim R 249
- TYN v R [2009] NSWCCA 146