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District Court 17 June 2022

Mundy v R

[2022] NSWDC 316

Fraud & dishonesty

Citation: Mundy v R [2022] NSWDC 316
Court: District Court of New South Wales
Date: 17 June 2022
Judge: Bennett SC DCJ

Background

The appellant was sentenced in the Local Court at Bega on 1 March 2022 for four offences of obtaining, or attempting to obtain, a financial advantage by deception contrary to the Criminal Code (Cth). The conduct involved fraudulently claiming Australian Government Disaster Recovery Payments across two separate periods: payments relating to the 2020 bushfires and payments relating to 2021 flood damage. The total amount obtained was $31,000, with a further $28,500 the subject of unsuccessful attempts.

The Magistrate imposed an aggregate sentence of 24 months, suspended after nine months, with conditions including five years of good behaviour and supervision. A reparation order of $25,000 was also made.

The appellant appealed to the District Court on the ground that the sentence was excessive. She is an Aboriginal woman born in 1974, with a prior record that included earlier dishonesty offences, and a background marked by the effects of intergenerational trauma. A psychologist's report and evidence from her sister were tendered at the appeal hearing.

  • Whether the aggregate sentence imposed by the Magistrate was manifestly excessive in all the circumstances
  • Whether the principles in Bugmy v R [2013] HCA 37 (concerning the relevance of background deprivation and disadvantage, particularly for Aboriginal offenders, to the assessment of moral culpability) applied to the appellant's circumstances
  • Whether bail conditions enabling participation in a residential rehabilitation program were appropriate pending a full hearing of the appeal

Decision

Bennett SC DCJ did not reach a concluded view on the ultimate outcome of the appeal, as the matter was not fully argued. Instead, the Court adjourned the proceedings by consent to allow the appellant to participate in a 12-week residential rehabilitation program at The Glen for Women at Wyong Creek, with a mention date set for 22 July 2022 to confirm her participation.

The Court accepted that the appellant's history of disadvantage, including harmful relationships and the effects of intergenerational trauma experienced by Aboriginal Australians, provided meaningful context for her pattern of offending. This engaged the principles from Bugmy v R, which hold that such background deprivation remains relevant to the assessment of moral culpability regardless of how many times it has been before a court. The Court also accepted evidence from the appellant's sister about the challenges the appellant had faced throughout her life.

The Court found that allowing the appellant to serve out the balance of her custodial term without access to intensive rehabilitation would produce little benefit for her or the community. The constraints of the residential program were accepted as satisfying a quasi-custodial purpose. A full sentencing determination was expressly reserved until after the program's conclusion, at which point the appellant's rehabilitation progress would inform submissions about the remaining custodial component.

Orders Made

  • Proceedings adjourned to allow the appellant to participate in The Glen for Women 12-week residential rehabilitation program at Wyong Creek
  • Matter listed for mention on 22 July 2022 to confirm continued participation and compliance with bail conditions
  • Bail granted from 5 July 2022, on the following conditions:
  • Released into the custody of a Katungul Aboriginal Corporation staff member on 5 July 2022 and conveyed directly to The Glen for Women
  • To reside only at The Glen for Women, 235 Yarramalong Road, Wyong Creek
  • To participate in the full 12-week program and not leave or cause discharge from the program
  • To comply with all reasonable directions of program staff
  • Not to leave The Glen for Women except in the company of program staff or a NSW Corrective Services officer
  • Not to possess or consume alcohol, illicit substances, or unprescribed medication, and to submit to drug and alcohol testing if requested by police

Key Takeaways

  • The District Court applied the principles in Bugmy v R [2013] HCA 37, confirming that an Aboriginal offender's background of intergenerational trauma and deprivation remains a relevant consideration in sentencing, including on appeal, even where the offender has a prior criminal history.
  • A sentence appeal in the District Court is not an error-correction exercise: the Court looks afresh at all available material and may receive further evidence about circumstances that have arisen since the Local Court proceedings.
  • Where a custodial sentence is already underway, the prospect of intensive rehabilitation through a structured residential program can be treated as satisfying a quasi-custodial purpose, potentially supporting adjustment of the remaining custodial component.
  • The Court expressly reserved its final determination on the severity of the sentence pending the outcome of the rehabilitation program, meaning the appeal remained live and the ultimate orders were yet to be made.
  • Psychologist reports and family evidence going to an offender's personal history, prospects of rehabilitation, and likely effect of imprisonment on dependent children were all treated as relevant sentencing material on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1), 134.2(1) (obtaining financial advantage by deception; attempt)
- Crimes Act 1914 (Cth), s 16A (matters to be considered in sentencing), s 20(1)(b) (suspended sentences)

Cases
- Bugmy v R [2013] HCA 37