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Local Court 27 October 2017

R v Julia Demir

[2017] NSWLC 27

Fraud & dishonesty
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES FALSE WORKERS COMPENSATION CLAIMS OFFENDER NOT EMPLOYED OFFENDER NOT INJURED

Citation: R v Julia Demir [2017] NSWLC 27
Court: NSW Local Court (Downing Centre)
Date: 27 October 2017
Judge(s): Magistrate P Stewart

Background

The offender was charged with two counts of obtaining property by deception under s 192E(1)(a) of the Crimes Act 1900 (NSW). The charges arose from fraudulent workers compensation claims lodged in 2012 with two separate insurers, CGU Workers Compensation and Allianz Australia Workers Compensation, for an injury allegedly sustained while working for a company called Cityview NSW Pty Ltd.

The offender was never employed by Cityview, and no workplace injury occurred. Investigations revealed that the relevant office address was vacant on the date of the alleged injury, and a person named Richard Cherry, whose name appeared on the claim forms as the employer contact, stated he had never heard of the offender.

Benefits totalling $70,475.21 were paid across both claims before liability was declined. The specific amounts the subject of the charges were $27,809.60 paid by CGU (count one) and $11,186.38 paid by Allianz (count two). Pleas of not guilty were initially entered, with guilty pleas entered on the day of the scheduled hearing.

  • Whether the two offences constituted a single course of conduct or two separate and distinct offences for sentencing purposes
  • Whether a suspended sentence was an appropriate sentencing option given the nature and seriousness of the offending
  • What sentence was proportionate, taking into account the degree of planning, the need for general and specific deterrence, parity considerations, and the quantum of loss
  • The appropriate discount to apply for the utilitarian value of a late guilty plea

Decision

Magistrate Stewart rejected the parties' joint submission that the two offences should be treated as a single course of conduct. His Honour found that although the offender played no part in CGU's decision to transfer the claim to Allianz, the fraud on Allianz was a separate and independently initiated criminal act. Allianz only accepted liability after the offender submitted a fresh false claim form; without that step, payments would not have continued. The two offences were linked by the original false injury but were distinct in character and victim.

The Magistrate found the fraud on Allianz to be marginally more serious than the fraud on CGU, despite the lower dollar amount specified in count two. This was because the offender had already perpetrated fraud on CGU and then chose to commit further criminal conduct against a second victim insurer to conceal the first fraud and maintain the flow of benefits.

A 10% discount was applied for the utilitarian value of the guilty plea, consistent with R v Thompson; R v Houlton. The Magistrate found that a suspended sentence was not appropriate where general deterrence was a principal consideration, citing R v Taylor, which confirmed that a suspended sentence provides little or nothing by way of general deterrence. The offender was assessed as suitable for an Intensive Corrections Order, and that was the form the sentence took.

Orders Made

  • 18-month sentence of imprisonment from 27 October 2017 to 26 April 2019, to be served by way of Intensive Corrections Order, with a direction to report to Liverpool Community Corrections Office on 30 October 2017
  • Prosecution costs ordered in the sum of $33,279.53
  • Restitution to the Workers Compensation Insurance Fund of $27,809.60 (count one, under s 43(1) Criminal Procedure Act 1986)
  • Restitution to the Workers Compensation Insurance Fund of $11,186.38 (count two, under s 43(1) Criminal Procedure Act 1986)
  • Further restitution to the Workers Compensation Insurance Fund of $31,479.23 (count two, under s 97(1) Victim Rights and Support Act 2013)
  • Order to attend Liverpool Police Station for fingerprints and photograph under s 134 Law Enforcement (Powers and Responsibilities) Act 2002

Note: On appeal, the NSW District Court allowed the severity appeal in part and substituted an 18-month suspended sentence.

Key Takeaways

  • Two fraudulent claims arising from the same fabricated injury can constitute two separate and distinct offences where the second insurer only accepted liability after the offender independently submitted a fresh false claim, even if the offender played no role in the transfer of the claim between insurers.
  • A joint submission by prosecution and defence that two charges represent a single course of conduct does not bind a sentencing court, which must form its own view on the facts.
  • Where general deterrence is the principal sentencing consideration, a suspended sentence is an inappropriate outcome; the Local Court relied on R v Taylor for the proposition that suspended sentences provide little or no general deterrent effect.
  • Late guilty pleas entered on the day of a scheduled hearing attract only a modest discount; here, 10% was applied for utilitarian value, consistent with R v Thompson; R v Houlton.
  • The District Court subsequently allowed the severity appeal in part, substituting a suspended sentence, which illustrates that appellate courts may take a different view of the weight to be given to competing sentencing considerations in comparable cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 53A, 192C, 192D, 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 7, 12, 44(2B), 44(2C), 53B, 58
- Criminal Procedure Act 1986 (NSW) ss 21A(2), 43(1), 215
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 134
- Victim Rights and Support Act 2013 (NSW) s 97(1)

Cases:
- R v Thompson; R v Houlton [2000] NSWCCA 309
- R v Taylor [2000] NSWCCA 442
- Cahyadi v R [2007] NSWCCA 1
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Jimmy v R [2010] NSWCCA 60
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- Pearce v The Queen (1998) 194 CLR 610
- PG v R [2017] NSWCCA 179
- R v de Simoni (1981) 147 CLR 383
- R v Doan (2000) 50 NSWLR 115
- R v Henry [1999] NSWCCA 111
- R v Merrin [2007] NSWCCA 255
- R v Tadrosse (2005) 65 NSWLR 740
- Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169
- Vaovasa v R [2007] NSWCCA 253
- The Queen v Allred [2015] ACTSC 327