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District Court 23 June 2009

Lewis, Mandy Jayne v R

[2009] NSWDC 157

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL APPLICATION OF S 19B CRIMES ACT 1914 BREADTH OF CONSIDERATIONS

Citation: Lewis, Mandy Jayne v R [2009] NSWDC 157
Court: District Court of New South Wales
Date: 23 June 2009
Judge(s): Cogswell SC DCJ

Background

The appellant was a Centrelink recipient who pleaded guilty to three charges of engaging in conduct resulting in obtaining a financial advantage from a Commonwealth entity, contrary to s 135.2(1) of the Criminal Code Act 1995. The offences involved her failure to report, or underreporting of, employment income while receiving Parenting Payment Single across three distinct periods between June 2005 and November 2007. The total overpayment amounted to $7,522.08.

A Magistrate convicted her of all three charges and sentenced her to a good behaviour bond under s 20 of the Crimes Act 1914, together with a reparation order, costs, and a fingerprinting order. The appellant appealed to the District Court, seeking to have the conviction set aside in favour of a discharge without conviction under s 19B of the Crimes Act 1914.

The appellant had no prior convictions and presented evidence of significant personal hardship, ongoing health difficulties, and active efforts to retrain for future employment. She argued that a conviction would materially harm her prospects in the health, welfare, and security industries.

  • Whether the Magistrate's sentence, which included a conviction, should be set aside on appeal.
  • Whether the circumstances warranted an order under s 19B(1)(d) of the Crimes Act 1914 discharging the appellant without proceeding to conviction.
  • How to construe and apply the concept of "inexpedient to inflict any punishment" under s 19B in the context of offences against Commonwealth entities, which courts ordinarily treat seriously.

Decision

The District Court accepted that Commonwealth social security fraud is treated seriously by higher courts, with the Court of Criminal Appeal having made clear that such offences ordinarily attract a custodial sentence regardless of whether the motivation was need or greed. The prosecution submitted that a discharge under s 19B would be very lenient, given that sentencing usually begins with consideration of custody and works downward from there.

Despite that starting point, the court found that the breadth of considerations available under s 19B was wide enough to accommodate the appellant's circumstances. The court had regard to a detailed psychological assessment prepared by a Legal Aid social worker, which documented a history of childhood sexual abuse, a series of acute personal crises in 2005 and 2006 (including a cancelled engagement, a house fire, the death of her mother, and a car accident), a resulting breakdown and suicide attempt, ongoing severe depression managed with psychiatric medication, and a chronic physical injury sustained at work.

The court also took into account the appellant's lack of any prior convictions, her full acceptance of responsibility, and her concrete steps toward retraining in health-related and security-related fields. A conviction, the court found, would significantly diminish her capacity to work in those areas. Weighing all of those factors, the court concluded it was inexpedient to inflict any punishment in the form of a conviction, and set aside the Magistrate's sentence.

Orders Made

  • The Magistrate's sentence was set aside.
  • Under s 19B(1)(d) of the Crimes Act 1914, the appellant was discharged without proceeding to conviction on all three charges.
  • The appellant was required to enter into a recognisance of $500 (without sureties), subject to the following conditions:
  • Be of good behaviour for two years.
  • Pay reparation of $7,522.08 by instalments of $20 per fortnight.
  • No order for costs was made.

Key Takeaways

  • The District Court confirmed that s 19B of the Crimes Act 1914 carries a broad range of considerations when assessing whether it is "inexpedient to inflict any punishment," even for offences that ordinarily attract custodial sentences.
  • Commonwealth social security fraud is treated seriously by courts, with the Court of Criminal Appeal having established that custody is ordinarily the starting point regardless of the offender's financial circumstances or motivation.
  • A discharge without conviction under s 19B(1)(d) remains available in appropriate cases, but the threshold is high: it required, here, a combination of no prior convictions, full acceptance of responsibility, documented severe personal hardship, serious ongoing health conditions, and identifiable concrete prejudice flowing from a conviction.
  • Where significant personal circumstances post-date or contextualise the offending, a comprehensive psychological or social work assessment can carry material weight in a sentencing appeal.
  • Reparation obligations imposed as a condition of a s 19B recognisance may be structured to follow the completion of a pre-existing debt to the same creditor, as occurred in this case with the appellant's prior Centrelink debt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 19B, 20
- Criminal Code Act 1995 (Cth), s 135.2(1)
- Crimes (Appeal and Review) Act 2001, s 20(2)

Cases:
- Cobiac v Liddy (1969) 119 CLR 257
- Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568