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District Court 21 April 2011

R v Michael John HENNESSY

[2011] NSWDC 77

Fraud & dishonesty
CRIMINAL LAW SENTENCE DEFRAUD THE COMMONWEALTH OBTAIN ADVANTAGE BY DECEPTION MAKE FALSE STATEMENT ENTITLED TO RECEIVE PAYMENT IN OWN NAME

Citation: R v Michael John Hennessy [2011] NSWDC 77
Court: District Court of New South Wales
Date: 21 April 2011
Judge: Cogswell SC DCJ

Background

The offender received Centrelink payments in two separate identities over a period of approximately six and a half years. While legitimately entitled to a Disability Support Pension in his own name, he also created and maintained a false identity, "Michael James Hanson," supported by an extensive suite of forged documents including a false passport, birth certificate, tax file number, Medicare card, bank accounts, and various licences.

Using this false identity, the offender obtained Job Search Allowance, Newstart Allowance, Newstart Mature Age Allowance, and ultimately an Aged Pension. The fraud was detected when Centrelink noticed the false name had no Medicare usage for five years. On execution of a search warrant, investigators found 72 documents in the false name at the offender's home, along with diaries tracking payment dates for both identities in meticulous detail.

The outstanding debt to the Commonwealth at the time of sentencing stood at approximately $73,845.03, with the offender repaying it at $15 per week. He was aged and in very poor health, with conditions including ischaemic heart disease, diabetes, hypertension, emphysema, spinal problems, gout, and a history of heart attacks.

  • What total sentence was appropriate for eight offences involving welfare fraud and use of a false passport, taking into account the objective seriousness of the conduct?
  • How should the offender's age and significant ill health bear on the length and structure of the sentence?
  • What weight should be given to mitigating factors including a guilty plea, demonstrated remorse, and a low risk of reoffending?
  • How should sentences for offences under two different legislative regimes (the former Crimes Act 1914 s 29D and the Criminal Code Act 1995 s 134.2(1)) be structured and accumulated?

Decision

Cogswell SC DCJ found the offending to be deliberate, well-planned, and sustained. The meticulous diary entries tracking payment dates for both identities illustrated the calculated nature of the conduct. The judge acknowledged that a full-time custodial sentence was plainly required given the duration and sophistication of the fraud.

The offender's near-absence of relevant criminal history was treated as a mitigating factor. The 1987 Victorian offence of obtaining property by deception, more than 20 years earlier, attracted negligible weight. A low-range PCA offence dismissed in 1998 was given no weight at all. His guilty plea, expressed remorse, and the psychologist's assessment of a low reoffending risk were all accepted as genuine mitigating factors.

The judge gave close attention to the offender's health. Medical evidence was divided: his GP expressed concern that custody would disrupt specialist reviews, while a consultant physician considered that custody would not interfere with his condition provided medication continued. The judge accepted that poor health and limited mobility increased the offender's vulnerability in custody and used this to justify a reduced non-parole period.

Drawing on the Court of Criminal Appeal decisions in R v Grenfell and R v Leighton, the judge confirmed that age and ill health are relevant to sentence, particularly in assessing the severity of imprisonment for a vulnerable offender. However, those factors did not displace the need for a term reflecting the seriousness of the offending.

Orders Made

  • Three concurrent sentences of 3 years imprisonment for the three offences under s 29D of the Crimes Act 1914, commencing 21 April 2011 and expiring 20 April 2014.
  • Four concurrent sentences of 3 years imprisonment for the four offences under s 134.2(1) of the Criminal Code Act 1995, commencing 21 April 2012 and expiring 20 April 2015 (partially accumulated on the first group).
  • One sentence of 1 year imprisonment for the passport offence under s 10(1)(a) of the Australian Passports Act 1938, commencing 21 April 2015 and expiring 20 April 2016.
  • Aggregate head sentence of 5 years imprisonment, commencing 21 April 2011.
  • Non-parole period of 2 years and 6 months (50% of the head sentence, reduced from the anticipated 60% on account of the offender's health and vulnerability).
  • Recognisance release order: release on 20 October 2013, subject to good behaviour for the balance of the sentence.

Key Takeaways

  • The District Court confirmed that age and ill health are legitimate sentencing considerations, particularly where they increase an offender's vulnerability in custody, but those factors must be balanced against the objective gravity of the offending conduct.
  • A non-parole period of 50% was imposed rather than the more typical 60%, specifically because of the offender's poor health and limited mobility, reflecting the approach endorsed in R v Grenfell (2009) 196 A Crim R 145 and R v Leighton [2010] NSWCCA 280.
  • Where welfare fraud is sustained over years, supported by an elaborate false identity and forged documents, courts will treat the conduct as deliberate and well-planned, which weighs heavily in the objective seriousness assessment.
  • Partial accumulation of sentences was applied to reflect the distinct nature of the two groups of offences (those under the former Crimes Act and those under the Criminal Code), while avoiding a total sentence disproportionate to the overall criminality.
  • Mitigating factors, including a guilty plea, remorse, low reoffending risk, and a near-absence of relevant criminal history, were accepted but did not overcome the need for a substantial custodial term given the duration and sophistication of the fraud.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 29D
- Criminal Code Act 1995 (Cth), s 134.2(1)
- Australian Passports Act 1938 (Cth), s 10(1)(a)
- Crimes Act 1900 (NSW), s 556A (former provision, mentioned in passing)

Cases
- R v Grenfell (2009) 196 A Crim R 145 (NSWCCA)
- R v Leighton [2010] NSWCCA 280
- R v Purdon, unreported, NSWCCA, 27 March 1997
- Loch Su Lee, unreported, NSWDC, 18 March 2003
- R v Veljanovski, unreported, NSWDC, 12 October 2006