Citation: Assie v R (Cth) [2020] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 2 October 2020
Judge(s): Payne JA, Walton J, Fullerton J (unanimous)
Background
The appellant pleaded guilty in the District Court to two Commonwealth offences: conspiracy to dishonestly cause a loss to the Commonwealth, and dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime. The offending arose from a welfare fraud scheme she operated with her late husband, in which they assisted clients to make false Centrelink claims for carer payments and carer allowances, using fabricated medical reports supplied by complicit practitioners.
The scheme ran from February 2013 until September 2015, continuing after a police search in September 2013 and for three months after the appellant's husband died in June 2015. The total amount fraudulently obtained from the Commonwealth by the four clients was $137,397.06. A further $244,950 in cash was found at the couple's home during a second search warrant, which formed the basis of the proceeds of crime charge.
After a 10 percent discount for guilty pleas, the District Court imposed an aggregate sentence of five years' imprisonment with a non-parole period of three years and three months.
Legal Issues
- Whether the applicant was denied procedural fairness during the sentencing proceedings, specifically whether the sentencing judge had indicated a lower sentence than was ultimately imposed
- Whether the aggregate sentence was manifestly excessive in all the circumstances
- (A third ground concerning the sentencing judge's application of s 16 of the Crimes Act 1914 (Cth) was not pressed at the hearing)
Decision
On procedural fairness, Fullerton J found no basis for the first ground of appeal. Nothing in the sentencing transcript or reasons supported the contention that the judge had given counsel reason to understand or expect that a sentence of four years and two months was in prospect. The sentencing judge had made no indication of a specific penalty range or sentence in either years or months. The exchange with the Crown that the appellant relied upon went only to positioning the offending within a range of objective seriousness, which is a distinct question from the sentencing range applicable to that level of seriousness.
The Court confirmed that a procedural fairness complaint requires a finding of practical injustice. Applying Ng v R [2011] NSWCCA 227 and Weir v R [2011] NSWCCA 123, Fullerton J found nothing to suggest the appellant suffered any injustice in the sentencing process. Leave on the first ground was refused.
On manifest excess, the Court found the aggregate sentence was neither unreasonable nor plainly unjust. The sentencing judge had made unchallenged findings that the conspiracy was sophisticated, that the appellant and her husband were equally culpable as the scheme's architects, and that the appellant's sole motivation was greed. The sentencing judge also correctly identified general deterrence as an important consideration given the nature of the offending against Commonwealth welfare systems. Leave on the third ground was also refused.
Orders Made
- Leave to advance the first ground of appeal is refused
- Leave to advance the third ground of appeal is refused
- Leave to appeal is refused
- The appeal is dismissed
Key Takeaways
- A procedural fairness complaint in a sentencing context requires more than a subjective sense of surprise at the outcome; it requires a finding of actual practical injustice, assessed against what the sentencing judge said or indicated during the proceedings.
- Where a sentencing judge positions an offence within a range of objective seriousness, that exercise is distinct from any indication about the sentencing range likely to follow, and does not give rise to a legitimate expectation about the final sentence.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an aggregate sentence will not be disturbed unless it is "unreasonable" or "plainly unjust," a high threshold that the appellant did not meet on the facts.
- The finding that both the appellant and her husband were co-architects of the scheme, with equal culpability, supported treating the appellant's role as central rather than subsidiary, even where her husband may have initially played a more prominent part.
- General deterrence carries significant weight in Commonwealth welfare fraud matters, and the sentencing court's emphasis on that consideration was upheld as appropriate in an offence of this character.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 135.4(3) (conspiracy to cause loss to the Commonwealth) and s 400.9(1) (dealing with suspected proceeds of crime)
- Crimes Act 1914 (Cth), s 16
Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227
- Weir v R [2011] NSWCCA 123