Citation: R v Tadik [2019] NSWDC 663
Court: District Court of New South Wales
Date: 4 October 2019
Judge(s): Colefax SC DCJ
Background
The offender appeared for sentencing on a single charge of dishonestly causing a risk of loss to a Commonwealth entity, contrary to s 135.1(5) of the Commonwealth Criminal Code. The maximum penalty for this offence is five years' imprisonment and/or a fine.
Between March 2011 and March 2017, the offender fraudulently claimed and received Newstart allowance from the Commonwealth using the assumed identity of a real person she had known since school. To sustain the fraud over approximately six years, she opened a bank account in that person's name, produced false work references, made false electoral enrolments, and provided false medical certificates. The total amount dishonestly obtained from the Commonwealth was $98,879.36.
The offending was not isolated. The court noted the offender had also been warned in 2012 about misusing a separate false identity to claim Commonwealth payments, yet continued the present fraud for a further five years. She had additionally obtained home loans, credit accounts, and various other financial products dishonestly, causing losses beyond the Commonwealth.
Legal Issues
- What was the appropriate head sentence, accounting for objective seriousness, the offender's personal circumstances, and the early guilty plea?
- Whether the sentence should be served by way of an Intensive Correction Order (ICO) or full-time imprisonment.
- Whether the stated intention of Community Corrections to suspend supervision (in the absence of electronic monitoring or home detention) was a relevant factor in determining the mode of serving the sentence.
Decision
Head sentence. The court assessed the offending as objectively serious, involving persistent and sophisticated fraud across 128 false representations over six years. The absence of prior convictions carried limited weight given the duration and nature of the dishonesty. The offender's stated motivation, that she needed funds for costly family law proceedings, provided context but no excuse. The court accepted, despite an unverified psychological report and the offender's demonstrated history of dishonesty, that a background of domestic violence was likely genuine. Because the offending was not motivated by pure greed, no upward adjustment was made on that basis. Before discount for plea, the court fixed the sentence at two years and six months.
Guilty plea discount. The court applied a 25% discount for the early guilty plea, acknowledging it facilitated the administration of justice even though it was entered against a strong Crown case. This produced a total term of one year and ten months.
Mode of service. The court declined to order an ICO. Two primary reasons were identified. First, the paramount statutory consideration for an ICO is whether it or full-time detention is more likely to address the risk of reoffending; the court rejected the sentencing assessment report's conclusion that the offender posed a low reoffending risk, pointing to the length of the fraud, its sophistication, persistence after the 2012 warning, and the breadth of entities deceived. Second, the objective seriousness of the offending was itself sufficient to make an ICO inappropriate.
Supervision concern. A third, independent reason for refusing an ICO arose from Community Corrections' indication that supervision would be suspended under any supervised order without electronic monitoring or home detention. The court, referring to its earlier decision in R v Siosaia Tupou [2018] NSWDC 399, stated that where Corrective Services signals it will remove supervision, this can of itself justify declining to impose an ICO, since the court has no power to direct the Commissioner on whether to suspend supervision.
Orders Made
- Non-parole period of 12 months, commencing 4 October 2019.
- Recognizance release order for 10 months, commencing 3 October 2020.
- Reparation order of $98,879.36.
Key Takeaways
- The District Court confirmed that the absence of prior convictions carries reduced mitigating weight in cases of persistent dishonesty committed over an extended period, as opposed to a single discrete event.
- Where an offender's motivation falls short of pure greed, that context may be noted but does not constitute a mitigating factor in its own right; however, a finding of greed would have increased the sentence.
- A sentencing court may decline to impose an ICO where it is not satisfied the order would better address the risk of reoffending than full-time detention, and separately where objective seriousness makes such an order inappropriate.
- Under the approach articulated in R v Siosaia Tupou and applied here, a Corrective Services indication that supervision will be suspended under a proposed ICO constitutes an independent basis for refusing that order, given courts cannot direct the Commissioner on supervision decisions.
- Unverified claims in psychological reports may still be accepted on the balance of probabilities by a sentencing court, even where an offender has a demonstrated history of dishonesty, provided sufficient contextual support exists within the report itself.
Legislation and Cases Referenced
Legislation
- Commonwealth Criminal Code, s 135.1(5) (dishonestly causing a risk of loss to a Commonwealth entity)
Cases
- R v Siosaia Tupou [2018] NSWDC 399