Citation: R v Barker [2024] NSWDC 317
Court: District Court of New South Wales
Date: 23 May 2024
Judge: Scotting DCJ
Background
The offender, a 71-year-old woman, appeared for sentencing after pleading guilty in the Local Court to dishonestly obtaining a financial advantage from the Commonwealth by deception, contrary to s 134.2(1) of the Criminal Code (Cth). The offence carried a maximum penalty of 10 years imprisonment.
The offending concerned the receipt of carer payments and carer allowances from Services Australia over a period of approximately five and a half years, from May 2015 to December 2020. The offender claimed these benefits on the basis that she was providing constant care to her eldest son, who suffered from a disability. In fact, her son had departed Australia on 11 May 2015 and had not returned as at December 2020.
The offender had a history of prior carer payment claims dating back to 2008. She had been informed on numerous occasions, including through claim forms, letters, and interviews, that eligibility required the provision of constant care in the care recipient's home and that she was obliged to notify Services Australia of any change in circumstances within 14 days. Despite multiple interactions with Services Australia during the offending period, including telephone calls and in-person visits, the offender consistently failed to disclose her son's departure. The total amount fraudulently obtained was $154,359.55.
Legal Issues
- What sentence was appropriate for a single federal fraud offence involving prolonged deception and a substantial financial benefit obtained from the Commonwealth?
- What weight should be given to the offender's mental health condition, age, personal circumstances, and early guilty plea in determining the appropriate sentence?
- Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time imprisonment.
Decision
Scotting DCJ applied the sentencing framework under Part IB of the Crimes Act 1914 (Cth), in particular s 16A, and considered a range of aggravating and mitigating factors. The offending was serious: it was deliberate, extended over more than five years, involved a substantial sum of public money, and was committed against the backdrop of prior cancellations and repeated warnings about the conditions of eligibility. The offender had actively deceived Services Australia during multiple interactions rather than simply failing to act.
In mitigation, the court gave weight to the offender's early guilty plea, entered in the Local Court, and applied a 25% discount for its utilitarian value and as an indication of remorse. The court also considered the offender's significant mental health difficulties, her history of domestic violence and abuse, her age of 71, her lack of any prior criminal history, and a direct causal relationship between her mental health condition and the offending conduct.
The sentencing assessment report indicated the offender presented a very low risk of reoffending, given that Services Australia was now fully informed of her circumstances. The severity of her mental health condition and its causal connection to the offending led the court to reduce the weight ordinarily given to general deterrence, retribution, and denunciation.
Having regard to all of these factors, the court was satisfied that community protection was best served by the sentence being served in the community by way of an ICO. The court noted that an ICO is a form of imprisonment that carries a significant impact on liberty and appropriately reflects the seriousness of the conduct and the harm caused to the community.
Orders Made
- The offender was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order (ICO), commencing 23 May 2024 and expiring 22 May 2026.
- The offender was required to report to the Gosford Community Corrections Office by 4pm on 30 May 2024.
- Standard ICO conditions applied: no offences to be committed; the offender to submit to supervision by a Community Corrections Officer.
- Additional condition: the offender must receive treatment for her mental health as reasonably directed by Community Corrections.
- The offender was required to attend the Criminal Registry to confirm her residential address for service of the order.
Key Takeaways
- The District Court confirmed that a serious and prolonged Commonwealth welfare fraud, even where the offender is elderly and has complex mental health needs, warrants a custodial sentence, though the form of that sentence may be an ICO where community protection is best served by community supervision.
- A direct causal relationship between an offender's mental health condition and the offending conduct can reduce the weight given to general deterrence, retribution, and denunciation at sentencing for a federal offence.
- Under s 16A of the Crimes Act 1914 (Cth), the sentencing court must apply the statutory factors alongside common law principles, and the listed factors are not exhaustive.
- An early guilty plea entered in the Local Court attracted a 25% discount, reflecting both its utilitarian value in saving court resources and its significance as evidence of remorse.
- Where an offender presents a very low risk of reoffending and has a treatable mental health condition causally connected to the offending, an ICO with a condition requiring engagement with mental health treatment may be preferred over full-time custody.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 134.2(1)
- Crimes Act 1914 (Cth), Part IB, s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)
Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 253 CLR 58
- Johnson v The Queen (2004) 78 ALJR 616
- Mandranis v R [2021] NSWCCA 97
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Olbrich (1999) 199 CLR 270
- R v Zamagias [2002] NSWCA 17