Citation: R v Issac [2023] NSWDC 207
Court: District Court of New South Wales
Date: 16 June 2023
Judge(s): Colefax SC DCJ
Background
The offender pleaded guilty to one count of dishonestly obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (Cth), which carries a maximum penalty of 10 years imprisonment. Over a period exceeding seven years (August 2013 to December 2020), she repeatedly and falsely represented to Services Australia that she was a sole parent, separated from her husband, in order to claim Parenting Payment Single (PPS). PPS is a Commonwealth income support payment available only to parents who are not members of a couple.
Throughout the entire period, the offender was in fact living with her husband and had three children with him during those years. The fraud only came to light in August 2020 when another Commonwealth agency disclosed the spousal relationship to Services Australia. A search warrant was executed at the family home in December 2020. The total amount fraudulently received was $170,787.11.
The sentencing proceedings included psychiatric and psychological reports, selective medical records, and a sentencing assessment report. The offender did not give sworn oral evidence at the hearing.
Legal Issues
- What was the appropriate objective seriousness of the offence, having regard to its duration, frequency, and quantum?
- What weight, if any, should be given to the offender's mental health history and subjective circumstances in mitigation?
- Whether the offender had demonstrated genuine remorse.
- What sentence was appropriate, including whether full-time imprisonment was warranted and whether hardship to the offender's children could displace that outcome?
Decision
Colefax SC DCJ placed the offence just below the mid-range of objective seriousness. The court pointed to the extended duration of more than seven years, the very large number of individual false representations, and the total amount obtained. Particularly notable were the offender's representations made as late as July 2019, in connection with the birth of her third child, in which she again falsely claimed to be a single mother separated from an "ex-husband."
The court scrutinised the subjective circumstances with care. While the offender had a genuine history of breast cancer and associated depression around 2009 to 2011, there was no independent medical evidence of ongoing mental health conditions in the years between 2011 and 2020. The court also noted that the explanation offered through the psychiatric reports for why the fraud commenced (financial hardship and the husband's alleged gambling and infidelity) appeared inconsistent with the financial profile of the family: joint home loans totalling well over $1 million, an investment loan of $850,000, and transaction accounts in which hundreds of thousands of dollars moved during the same period.
On remorse, the court was not satisfied on the balance of probabilities that the offender was genuinely remorseful. The court noted her plea of guilty was entered at an early stage and would attract a discount, but observed that the history given to the treating psychiatrist was unverified by sworn evidence, and the steps taken to engage with mental health professionals had only commenced after the fraud was detected. Prospects for rehabilitation were assessed as guarded, fully engaging specific deterrence.
The Crown sought full-time imprisonment. The court acknowledged that imprisonment would cause hardship to the offender's three young children, but found that the children had the support of their father and extended family. Applying Totaan v R [2022] NSWCCA 75, the court held that this consideration did not displace the need for full-time custody. It concluded that no sentence other than full-time imprisonment was appropriate.
Orders Made
- Full-time imprisonment for 3 years, dated from 16 June 2023 (discounted from a notional head sentence of 4 years by reason of the early guilty plea).
- Execution of the sentence partially suspended after the offender serves 16 months (expiring 15 October 2024), pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
- Upon release, the offender is to enter a self-recognizance of $1,000 (without security) for a period of 20 months, on the following conditions:
- Be of good behaviour.
- Accept supervision of NSW Corrective Services.
- Report to the Community Corrections Office at Fairfield no later than 4:00 pm on the day of release (in the first instance by telephone).
Key Takeaways
- A fraud on Centrelink involving systematic false representations over more than seven years, yielding over $170,000, was assessed as just below mid-range objective seriousness and warranted full-time imprisonment.
- Where an offender relies on expert psychiatric evidence based solely on an unverified self-reported history, and does not give sworn evidence to support that history, a sentencing court may approach those parts of the reports with caution, particularly where the history appears inconsistent with objectively documented financial conduct.
- Hardship to dependent children is a relevant sentencing consideration, but the District Court confirmed, applying Totaan v R, that it does not automatically displace a term of full-time custody where other factors strongly favour imprisonment.
- An early guilty plea attracted a meaningful discount (from 4 years to 3 years), but its mitigatory weight was assessed in the context of the overwhelming evidence against the offender following the search warrant.
- The partial suspension mechanism under s 20(1)(b) of the Crimes Act 1914 (Cth) was used to structure the sentence so that the offender serves a defined custodial period before being released on conditions, including supervision by Corrective Services.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth) s 134.2(1) (dishonestly obtaining a financial advantage by deception; maximum 10 years imprisonment)
- Crimes Act 1914 (Cth) s 20(1)(b) (partial suspension of sentence)
Cases
- R v Hurst; ex parte Director of Public Prosecutions (Cth) [2005] QCA 25
- Totaan v R [2022] NSWCCA 75