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Court of Criminal Appeal 12 April 2024

Eyeson v R

[2024] NSWCCA 52

Fraud & dishonesty

Citation: Eyeson v R [2024] NSWCCA 52
Court: Court of Criminal Appeal, New South Wales
Date: 12 April 2024
Judge(s): Mitchelmore JA (leading judgment); Wright J and Hamill J (agreeing)

Background

The appellant pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity and one charge of dishonestly causing or risking a loss to a Commonwealth entity. The offending involved a sophisticated dual-identity fraud against Services Australia, carried out over approximately seven years, resulting in a total loss or risk of loss to the Commonwealth of $293,243.68.

The fraud originated from a second birth certificate created by the appellant's mother when the appellant was an infant. Using two separate identities, the appellant claimed social security payments under both names simultaneously, falsely declaring on multiple occasions that she was not known by any other name. Three charges covered conduct spanning December 2012 to April 2020.

Critically, the appellant had been in a controlling and violent relationship with her ex-partner from approximately 2011 to February 2019. She gave evidence that her ex-partner's violence was triggered in part by her reluctance to commit fraud. Her mother had also played a role in initiating the scheme. At first instance, the District Court sentenced the appellant to an aggregate term of four years' imprisonment with a non-parole period of two years.

  • Whether the sentencing judge mistook the facts by concluding that the charges post-dated the conduct of the appellant's mother and ex-partner, which she contended had pressured her to commence and continue the fraud (Ground 1).
  • Whether the sentencing judge failed to take into account evidence of the involvement of the appellant's mother and ex-partner in the commencement and continuation of the fraudulent activity (Ground 2).
  • On resentence: the extent to which pressure from a violent and controlling relationship reduces moral culpability and affects the appropriate sentence for social security fraud.
  • Whether the presence of duress or coercion diminishes the significance of general deterrence in sentencing for this type of offending.

Decision

The Court of Criminal Appeal found both grounds of appeal established and concluded that a lesser sentence was warranted. On Ground 2, the sentencing judge had not addressed the appellant's evidence, or submissions made on her behalf, about the influence her ex-partner and mother exercised over her to engage in the offending. The Court held that this was a material consideration, and the complete absence of any reference to it in the sentencing remarks indicated the judge failed to consider it.

On Ground 1, the Court found the sentencing judge had misidentified when the appellant's relationship with her ex-partner ended. The judge appeared to treat the appellant seeking refuge at an ACT shelter in about April 2013 as marking the end of the relationship. In fact, the relationship continued in an "off and on" fashion until February 2019. All three offending sequences commenced during that relationship. This misapprehension meant the sentencing judge likely proceeded on the basis that the offending largely post-dated the violent relationship, which was factually incorrect.

On resentence, the Court found that the ex-partner's coercive and violent conduct, including violence in response to the appellant's reluctance to commit fraud, reduced the moral culpability of the offending. While the offending remained a serious case of its kind, those personal circumstances required appropriate weight. By contrast, the Court found the evidence did not demonstrate that the appellant's mother exercised the same degree of influence over her as the ex-partner did.

The Court confirmed that general deterrence remains an important consideration in sentencing for social security fraud, and that the presence of duress does not diminish its significance. The aggregate sentence was reduced from four years to three years and four months, with the non-parole period reduced from two years to one year and eight months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence set aside.
  • Aggregate sentence of 3 years and 4 months' imprisonment imposed, commencing 10 November 2022 and expiring 9 March 2026.
  • Non-parole period of 1 year and 8 months set, with earliest parole eligibility date of 9 July 2024.
  • Reparation order made at first instance under s 21B of the Crimes Act 1914 (Cth) left undisturbed.

Key Takeaways

  • A sentencing judge's failure to address material evidence about coercive influence on an offender's decision to commence and continue offending constitutes an error that warrants appellate intervention.
  • Where a chronological overlap exists between an offender's violent relationship and the period of offending, a misapprehension about when that relationship ended can fatally undermine the sentencing judge's assessment of moral culpability.
  • Coercive control and threatened or actual violence by a partner, particularly where that violence was provoked by the offender's reluctance to participate in the crime, can reduce the objective seriousness of the offending for sentencing purposes.
  • The Court of Criminal Appeal confirmed that general deterrence retains full significance in sentencing for social security fraud even where an element of duress or pressure is present.
  • In resentencing for federal offences, the Court noted that "special circumstances" as a basis for adjusting the non-parole period is not a relevant consideration, following Doig v R [2023] NSWCCA 76.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 134.2(1), 135.1(5)
- Crimes Act 1914 (Cth), ss 19AB, 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Doig v R [2023] NSWCCA 76
- Paterson v R [2021] NSWCCA 273
- Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365
- R v Day [2009] SASC 84
- Brown v R (1986) 43 SASR 33
- R v Riddell [2009] NSWCCA 96; 194 A Crim R 524
- R v Conway [2001] NSWCCA 51; 121 A Crim R 177
- R v Purdon (Court of Criminal Appeal (NSW), 27 March 1997, unrep)
- Tepania v R [2018] NSWCCA 247; 275 A Crim R 233
- Tham v R [2020] NSWCCA 338
- Turnbull v R [2019] NSWCCA 97