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Court of Criminal Appeal 3 February 2009

Ivanovic v R

[2009] NSWCCA 28

Fraud & dishonesty
CRIMINAL LAW SOCIAL SECURITY FRAUD DISCOUNT FOR PLEA OF GUILTY

Citation: Ivanovic v R [2009] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 3 February 2009
Judge(s): Blanch J, Grove J, Johnson J

Background

The applicant, a man born in 1947 who had migrated to Australia from the former Yugoslavia, was sentenced in the District Court in March 2008 on seven counts of social security fraud. The offending spanned several years and involved receiving a disability support pension and Newstart allowance while concealing employment, income, workers compensation payments, and assets, and also claiming Newstart allowance under a false name while simultaneously receiving a disability support pension.

The total overpayment across all seven counts amounted to approximately $49,000. The applicant made full restitution to the Commonwealth before sentencing. He had a limited prior criminal history, suffered from significant health problems including diabetes, hypertension and heart conditions, and had cooperated with investigators by making full admissions in a record of interview.

The District Court imposed nine months imprisonment on each of the four charges under the Crimes Act 1914 (Cth) and two years imprisonment on each of the three Criminal Code charges, with a recognisance release order allowing for release after approximately one year. The applicant sought leave to appeal, arguing the sentencing judge had failed to give adequate weight to his early guilty plea and his willingness to facilitate the course of justice.

  • Whether the sentencing judge erred by failing to give sufficient discount for the applicant's early guilty plea entered at the Local Court.
  • Whether the sentencing judge gave proper weight to the applicant's cooperation with authorities and his willingness to facilitate the course of justice.
  • Whether the overall sentences were manifestly excessive in the circumstances.

Decision

The Court of Criminal Appeal unanimously refused leave to appeal and dismissed the appeal. The court found no error in the sentencing judge's approach to the guilty plea. The remarks on sentence clearly showed the judge had taken the plea, remorse, reparation, and cooperation into account as matters in the applicant's favour.

On the question of the plea discount for Commonwealth offenders, the court cited the principle from Tyler v The Queen (2007) 173 A Crim R 458 that, in sentencing Commonwealth offenders, the relevant test concerns the offender's willingness to facilitate the course of justice rather than the utilitarian value of the plea. There is also no requirement that a discount be expressly quantified. The strength of the Crown case is a relevant consideration when assessing whether the plea genuinely reflected a willingness to assist justice, and the sentencing judge's reference to the strength of the Crown case was therefore appropriate.

The court also reaffirmed the established principle, drawn from Regina v Jennifer Rose Purdon (unreported, CCA NSW, 27 March 1997), that a custodial sentence must be imposed for social security fraud unless very special circumstances exist. The court confirmed those statements of principle remain valid. Given that the fraudulent activity here was planned and extended over a number of years, it warranted a sentence carrying a significant element of general deterrence. The court was satisfied no less severe sentence was warranted in law.

Orders Made

  • Application for leave to appeal refused.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that custodial sentences are required for social security fraud in the absence of very special circumstances, regardless of whether the fraud was motivated by greed or perceived need.
  • Under the sentencing framework for Commonwealth offenders, the relevant consideration for a guilty plea is the offender's willingness to facilitate the course of justice, not the utilitarian value of the plea, and no quantified discount is required.
  • The strength of the Crown case is a legitimate factor when a sentencing court assesses whether a guilty plea genuinely reflected a willingness to facilitate justice or merely a recognition of the inevitable.
  • No error was established in the sentencing judge's approach simply because a discount for the plea was not separately articulated, provided the remarks on sentence demonstrated the plea and associated factors were taken into account.
  • Planned, multi-year social security fraud involving false identities and concealment of multiple income sources calls for a sentence that reflects significant general deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29B
- Criminal Code 1995 (Cth), s 135.1(5)

Cases:
- Tyler v The Queen (2007) 173 A Crim R 458
- Regina v Jennifer Rose Purdon, CCA NSW, unreported, 27 March 1997