Citation: Commonwealth Service Delivery Agency v Braszell [2009] NSWLC 13
Court: Local Court of New South Wales (Albury)
Date: 13 October 2009
Judge(s): Magistrate Lerve
Background
The offender, a 50-year-old man, was entitled to receive the Disability Support Pension and was also permitted to supplement that income through paid employment. He was required by law to report his earnings to Centrelink on a fortnightly basis. Over a period of approximately three and a half years, he consistently understated his earnings from part-time work at a disability care centre in Albury.
The Commonwealth Service Delivery Agency prosecuted the offender on two charges covering distinct periods: October 2004 to January 2007, and April 2007 to March 2008. The total overpayment resulting from his conduct was $27,590.84. Magistrate Lerve noted this figure represented approximately half the average annual earnings of Australian wage earners at the time.
The offender defended the charges at hearing, so no discount for facilitating the course of justice was available. Magistrate Lerve nonetheless accepted a submission that the hearing had been conducted economically and on a narrow issue, warranting some minor consideration.
Legal Issues
- Whether the objective seriousness of the offending placed it above the midpoint for offences of this type
- Whether the offender's criminal history constituted an aggravating factor or precluded leniency
- Whether a custodial sentence was appropriate, given the general principle applying to social security fraud
- How to structure the sentence, including the non-parole period, for Commonwealth offences where the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply
- Whether a reparation order should be made in favour of the Commonwealth
Decision
Magistrate Lerve assessed the offending as falling above the halfway mark of objective seriousness for matters of this type, having regard to the duration of the conduct and the amount obtained. The maximum penalty for each charge was 12 months imprisonment, and the court treated that as the relevant yardstick rather than the Local Court's jurisdictional limit.
The offender's criminal history, which included prior convictions for dishonesty-related offences spanning several decades, did not itself operate as an aggravating factor. However, it was sufficient to deny him any claim to particular leniency. The court accepted that much of this history was connected to long-term drug addiction.
On the question of sentencing approach, Magistrate Lerve applied the well-established principle, recently restated by the NSW Court of Criminal Appeal in Ivanovic, that a custodial sentence is required for social security fraud unless very special circumstances exist. The court found no such circumstances here. The court also considered delay in bringing the charges as a mitigating factor but concluded that the overall circumstances still warranted a custodial term.
For the two offences, which represented a single ongoing course of conduct, the court treated them together and imposed a single total sentence. Following the principle in To, that non-parole periods for Commonwealth offences of this kind are generally between 60% and 66% of the head sentence, the court set the release point at five months of a nine-month sentence.
Orders Made
- Conviction recorded on each charge
- Sentence of 9 months imprisonment imposed on each charge
- Release on recognisance after serving 5 months, on condition of good behaviour for 12 months
- Supervision by the Probation and Parole Service for the 12-month recognisance period
- Recognisance self in the sum of $500
- Reparation order in favour of the Commonwealth in the amount of $26,398.04
- Direction to submit to fingerprinting pursuant to s 3ZL of the Crimes Act 1914 (Cth)
Key Takeaways
- A custodial sentence is required for social security fraud unless very special circumstances exist, a principle the NSW Court of Criminal Appeal has repeatedly affirmed and which binds the Local Court.
- Where an offender defends charges at hearing, no reduction in sentence is available for facilitating the course of justice, though a hearing conducted narrowly and economically may warrant some minor acknowledgment.
- For Commonwealth offences, the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply; instead, non-parole periods are generally set at between 60% and 66% of the head sentence, consistent with the approach in To and confirmed in Shen.
- Prior dishonesty convictions spanning many years did not constitute a formal aggravating factor on the facts here, but they were sufficient to preclude any claim to particular leniency.
- Where two charges arise from a single continuing course of conduct, a sentence on one charge can adequately reflect the criminality of both, avoiding a disproportionate cumulative result.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 135.2(1)
- Crimes Act 1914 (Cth), ss 3ZL, 16A, 17A
Cases
- Cameron v The Queen (2002) 209 CLR 339
- Charkowi [2008] NSWCCA 159
- Grenfell [2008] NSWCCA 162
- Hinton (2002) 134 A Crim R 286
- Ivanovic [2009] NSWCCA 28
- Shen [2009] NSWCCA 251
- To [2007] NSWCCA 200
- Zamagias [2002] NSWCCA 17