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2
Court of Criminal Appeal 22 February 2024

Issac v R

[2024] NSWCCA 2

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE NO DENIAL OF PROCEDURAL FAIRNESS GROUND REJECTED CRIME APPEALS

Citation: Issac v R [2024] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 22 February 2024
Judges: Davies J (with Hamill J and Huggett J agreeing)

Background

The appellant pleaded guilty in the Local Court to a single count of obtaining a financial advantage by deception under s 134.2(1) of the Criminal Code (Cth). Over more than seven years, between August 2013 and December 2020, she repeatedly and falsely told Services Australia that she was separated from her husband in order to claim Parenting Payment Single (PPS), a welfare payment available only to sole parents. She made this false representation on 45 separate contacts with Services Australia, all while living with her husband at a jointly owned property and having three children with him during the period of the fraud. The total amount fraudulently obtained was $170,787.11.

The District Court sentenced the appellant to 3 years' imprisonment, with execution partly suspended after 16 months on condition that she enter a self-recognizance and accept Corrective Services supervision. The full amount had been repaid prior to sentencing, and a psychiatrist's report was tendered without objection, noting that the appellant had a major depressive disorder that impaired her decision-making at certain points. The Crown accepted that concession but the sentencing judge found her mental health did not reduce her moral culpability to a significant degree. The judge was also not satisfied she was genuinely remorseful.

The appellant sought leave to appeal on four grounds, arguing denial of procedural fairness, error in the treatment of her mental health evidence, failure to consider the hardship of custody for a person with mental illness, and failure to treat repayment of the fraudulent funds as evidence of contrition.

  • Whether the sentencing judge denied the appellant procedural fairness by making adverse findings on her subjective case without warning her counsel
  • Whether the sentencing judge erred in his assessment of the appellant's mental health evidence, including by not accepting the psychiatric report's account of her history
  • Whether the sentencing judge erred by failing to find that full-time custody would be more onerous for the appellant because of her mental health condition
  • Whether the sentencing judge failed to properly treat the repayment of fraudulent funds as evidence of contrition under s 16A(2)(f) of the Crimes Act 1914 (Cth)

Decision

Grounds 1 and 1A: Procedural fairness and mental health

The Court of Criminal Appeal rejected the claim that the sentencing judge had denied procedural fairness. The judge had never indicated he would refrain from drawing adverse inferences against the appellant, and counsel had accepted at the sentencing hearing that persuading the judge of the appellant's subjective circumstances was counsel's task to discharge. The earlier authority of Edmonds v R [2022] NSWCCA 103, which involved a clearer representation by a sentencing judge, was distinguished on its facts.

The Court also confirmed that a sentencing judge is not obliged to accept the contents of an expert psychiatric report simply because it is tendered without objection and without cross-examination. The history the appellant gave the psychiatrist was not independently corroborated and appeared inconsistent with other evidence before the court. It was therefore open to the judge to be unpersuaded that her condition had significantly reduced her moral culpability, even while accepting the Crown's concession that it had caused some impairment.

Ground 1B: Hardship of custody

The Court rejected this ground because no submission had been made at the sentencing hearing about the particular hardship that full-time custody might impose on the appellant given her mental health. Sentencing proceedings are adversarial, and where a party does not seek a particular finding, the sentencing judge is entitled to infer that no such finding is pressed. The appellant could not raise this argument for the first time on appeal.

Ground 2: Repayment as contrition

The Court dismissed the argument that the sentencing judge was obliged to treat the repayment of fraudulent funds as evidence of contrition. The judge was entitled to consider the full picture: the appellant gave no sworn evidence of remorse, the Crown case was strong, the offending ceased only upon detection, and the repayment was made in the context of an existing debt raised by the Commonwealth and a reparation order sought by the Crown. Repayment in those circumstances could rationally be viewed as motivated by a desire to reduce penalty rather than genuine contrition. The case of Hyunwook v R, where the offender both made recompense and gave sworn evidence, was distinguished. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to accept the factual history recorded in a psychiatric report tendered without objection, particularly where that history is uncorroborated and appears inconsistent with other evidence before the court.
  • No denial of procedural fairness arises from adverse subjective findings where the judge gave no indication adverse inferences would not be drawn and counsel accepted the persuasion task at the hearing itself.
  • Where a sentencing submission does not seek a particular finding (here, that custody would be more onerous due to mental illness), the sentencing judge may infer that no such finding is pressed, and the point cannot be raised for the first time on appeal.
  • Full repayment of fraudulently obtained funds does not, by itself, compel a finding of contrition. The circumstances of repayment matter: payment made in the face of a strong Crown case, following detection, and under compulsion of a reparation order may be treated as self-interested rather than as evidence of genuine remorse.
  • In dismissing the appeal, the Court confirmed that the weight to be accorded mental health evidence as a mitigating factor in sentencing remains within the sentencing judge's discretion, even where a Crown concession on impairment is accepted.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 134.2 (obtaining a financial advantage by deception)
- Crimes Act 1914 (Cth) s 16A (matters to be taken into account at sentencing, including contrition)

Cases
- Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27
- Edmonds v R [2022] NSWCCA 103 (distinguished)
- Hyunwook v R [2010] NSWCCA 148 (distinguished)
- R v Phelan (1993) 66 A Crim R 446
- R v Issac [2023] NSWDC 207 (the sentencing judgment under appeal)
- Richards v R [2023] NSWCCA 264
- Zhang v R [2011] NSWCCA 233