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District Court 10 September 2021

DPP(Cth) v ROBERTS

[2021] NSWDC 472

Fraud & dishonesty
CRIME SENTENCING DISHONESTLY OBTAIN FINANCIAL ADVANTAGE SOCIAL SECURITY FRAUD GAMBLING ADDICTION CARER’S PAYMENT HARDSHIP TO THIRD PARTIES

Citation: DPP(Cth) v Roberts [2021] NSWDC 472
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Lerve DCJ

Background

The offender pleaded guilty to a single charge of dishonestly obtaining a financial advantage from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995. The charge related to social security fraud involving overpayment of a Carer's Payment, which is a benefit payable to eligible persons who provide full-time care for someone with a severe disability.

Between June 2012 and November 2016, the offender repeatedly misrepresented her employment and income to the Department of Social Security. During that period she held two jobs, first as a casual Correctional Officer with the Geo Group, and later also with the Riverina Medical and Dental Corporation. She earned $342,216.42 from employment but declared only $20,128.72 to the Department.

As a result, the offender received $143,243.75 in Carer's Payment benefits when she was entitled to only $17,811.26, producing an overpayment of $125,432.49. The fraud was detected through a data match with the Australian Taxation Office. Notably, the offender did not cease the conduct voluntarily but continued misrepresenting her income even after being notified of the data match.

  • What was the appropriate head sentence for a single count of social security fraud involving a large overpayment sustained over more than six years?
  • What discount should be applied for the guilty plea, and at what rate?
  • How should the offender's gambling addiction and associated personal circumstances bear on the sentencing exercise?
  • Whether hardship to a third party (a dependent person in the offender's care) constituted exceptional circumstances under s 16A(2)(p) of the Crimes Act 1914 (Cth), so as to affect the sentencing outcome.
  • What ratio of actual custody to the total sentence was appropriate, having regard to the offender's personal circumstances?

Decision

His Honour identified the amount of money obtained and the duration of the fraud as the most important indicators of seriousness in social security fraud matters. The offender obtained $125,432.49 over approximately six and a half years through a deliberate and consistent course of misrepresentation involving multiple false declarations, selective disclosure of payslips, and outright nil income declarations. The offending stopped only because of external detection, not any voluntary withdrawal.

Lerve DCJ accepted that the offender's gambling addiction had contributed to the offending, noting the money was largely dissipated through gambling. However, his Honour found that while addiction can operate as a mitigating factor, good character carries reduced weight where offending continues for a number of years, particularly where the offender had the capacity to understand and exploit the reporting system. The court applied the principle from Bugmy v The Queen that disadvantage and addiction do not diminish the need for general deterrence.

On the question of hardship to a third party, the court found that the circumstances relating to the dependent person in the offender's care did not rise to the level of exceptional circumstances required under s 16A(2)(p) of the Crimes Act 1914 (Cth). However, those circumstances were held to be relevant to the ratio between actual time in custody and the total sentence, contributing to a finding that the offender should serve less than half the head sentence in actual custody.

A 25% discount was applied for the guilty plea, reflecting its utilitarian value and the offender's facilitation of the course of justice under s 16A(2)(g) of the Crimes Act 1914 (Cth). The head sentence was fixed at three years imprisonment, with actual custody set at ten months.

Orders Made

  • The offender was convicted of the charge to which she pleaded guilty.
  • Sentenced to 3 years imprisonment.
  • Directed to be released after serving 10 months (from 10 September 2021 to 9 July 2022), upon entering a recognizance of $1,000 to be of good behaviour for 3 years.
  • The recognizance is conditioned on: being of good behaviour; submitting to supervision and guidance of the Department of Community Corrections for up to 2 years; and notifying the Court Registrar of any change of address.
  • Reparation order made in favour of the Commonwealth of Australia in the sum of $111,265.29.

Key Takeaways

  • The District Court confirmed that in social security fraud sentencing, the two primary indicators of objective seriousness are the total amount obtained and the length of time over which the fraud was perpetrated.
  • A gambling addiction may be accepted as a contributing factor to social security fraud, but its mitigating weight is reduced where the offending was sustained over multiple years and involved deliberate exploitation of a reporting system.
  • Where an offender ceased fraudulent conduct only because of external detection rather than voluntary withdrawal, that fact bears adversely on the assessment of culpability.
  • Hardship to a dependent third party did not constitute exceptional circumstances under s 16A(2)(p) of the Crimes Act 1914 (Cth), though it remained a relevant consideration in determining the proportion of a sentence to be served in actual custody.
  • Spending less than half of a total sentence in actual custody is available in appropriate cases, particularly where factors such as first-time custody, rehabilitation needs, and third-party circumstances combine to warrant an extended period of supervised release.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 134.2(1)
- Crimes Act 1914 (Cth), ss 16A(2)(g), 16A(2)(p), 19AC, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- Dinsdale v The Queen (2000) 202 CLR 321
- Carroll v The Queen (2009) 83 ALJR 579
- Grenfell v R (2009) 196 A Crim R 145 and 146
- Parente v R (2017) 93 NSWLR 633
- Mbele v R [2021] NSWCCA 182
- Brown v R [2014] NSWCCA 214
- Pham v R [2014] QCA 287
- Newton v R [2010] QCA 101
- Desborough v The Queen [2010] QCA 297
- Payne v R [2010] WASCA 177
- R v Assi [2006] NSWCCA 257
- R v Carroll [2008] NSWCCA 218
- Kovacevic v Mills (2000) 174 ALR 77
- Phelan (1993) 66 A Crim R 446