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District Court 24 September 2021

R v Sarza

[2021] NSWDC 616

Fraud & dishonesty

Citation: R v Sarza [2021] NSWDC 616
Court: District Court of New South Wales
Date: 24 September 2021
Judge: Buscombe DCJ

Background

The offender was sentenced following a guilty plea to a single charge of dishonestly obtaining a financial advantage by deception, contrary to s 134.2(1) of the Commonwealth Criminal Code. The offence carried a maximum penalty of ten years imprisonment and/or a fine of 600 penalty units.

The offender had been a correspondence nominee for her grandmother, who was in receipt of the aged pension from Centrelink. The grandmother departed Australia permanently in December 2007 and passed away in the Philippines in May 2015. Despite knowing both of these facts, the offender continued to represent to the Department of Human Services that her grandmother was resident in Australia, lodging rent certificates, making phone calls, and on multiple occasions advising of fictitious travel dates to and from the Philippines, including a particularly egregious false representation in May 2017, two years after her grandmother's death.

The fraud was only detected in August 2019 when the Department noticed the grandmother would have been over 100 years of age if still alive. By that point, pension payments totalling $230,131.58 had been fraudulently obtained, with only $10,621 repaid. The offender had access to her grandmother's Commonwealth Bank account and was captured on CCTV withdrawing funds in August 2019.

  • How objectively serious was the offending, and where did it fall on the range for this type of Commonwealth fraud offence?
  • What weight should be given to the offender's subjective circumstances, including her lack of criminal history, evidence of good character, psychological evidence, and personal background?
  • Whether an Intensive Correction Order (ICO) was an available or appropriate alternative to full-time custody.
  • What sentence, including non-parole period and ancillary orders, was appropriate in all the circumstances?

Decision

Buscombe DCJ assessed the objective seriousness of the offending as sitting a little below the notional mid-range for offences of this type. The judge identified several aggravating features: the offending spanned nearly eleven years; it involved a very substantial sum of almost a quarter of a million dollars; the offender had made numerous false representations, both verbal and in writing; and she had been expressly advised by the Department on two occasions about the conditions under which payments would cease. The fraud continued even after the grandmother's death, which the offender personally witnessed by attending the funeral in the Philippines.

The judge rejected any characterisation of the offending as entirely opportunistic. While it may have begun opportunistically, the repeated false representations made over many years required a degree of planning. The court took into account, in the offender's favour, her lack of criminal history, evidence of prior good character, her personal background including childhood poverty in the Philippines, and psychological evidence placed before the court. The offender did not give evidence on sentence, and the court gave appropriate weight to that fact when assessing what she had told report writers.

An ICO was not available because the court determined that a sentence exceeding two years was warranted. The court also noted that even if a shorter sentence had been appropriate, general deterrence would have required full-time custody for an offence of this seriousness. The court imposed a sentence of two years and three months imprisonment, with release on recognisance after 13 months, and made a reparation order for the outstanding fraudulently obtained amount.

Orders Made

  • The offender was convicted of the offence to which she pleaded guilty.
  • A sentence of two years and three months imprisonment was imposed, commencing 24 September 2021 and expiring 23 December 2023.
  • A Recognisance Release Order was made under ss 19A, 19C and 20 of the Crimes Act 1914 (Cth), requiring the offender to be released after serving 13 months, on 23 October 2022.
  • The Recognisance Release Order was set at $100 without surety, with a condition of good behaviour for two years.
  • A reparation order was made requiring the offender to pay the Commonwealth $219,510.58, being the outstanding balance of the fraud.

Key Takeaways

  • A fraud spanning nearly eleven years, involving close to a quarter of a million dollars and multiple written and verbal false representations to a Commonwealth agency, was assessed as sitting just below the notional mid-range of objective seriousness for this type of offence.
  • Under s 134.2(1) of the Commonwealth Criminal Code, the court emphasised that offenders who have been expressly advised of the conditions rendering payments invalid will be treated as having full knowledge of the fraudulent nature of their ongoing conduct.
  • General deterrence was a significant sentencing consideration. The District Court found it warranted full-time custody even setting aside the question of sentence length.
  • An ICO was unavailable here because the appropriate sentence exceeded two years, the statutory threshold for that sentencing option.
  • The continued receipt of pension payments after a beneficiary's death, including active false representations to a government agency made after the death, represents particularly serious conduct that the court described as "egregious."

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, s 134.2(1)
- Crimes Act 1914 (Cth), ss 16A(2)(g), 17A, 19A, 19C, 20, 21B

Cases:
- Johnston v R [2017] NSWCCA 53
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194