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District Court 20 August 2024

R v Wood

[2024] NSWDC 560

Fraud & dishonesty
CRIME SENTENCE DISHONESTLY INTEND TO OBTAIN A GAIN COMMONWEALTH OFFENCES

Citation: R v Wood [2024] NSWDC 560
Court: District Court of New South Wales
Date: 20 August 2024
Judge: Bourke SC DCJ

Background

The offender pleaded guilty to two offences under s 135.1 of the Criminal Code 1995 (Cth), each carrying a maximum penalty of ten years' imprisonment. Both offences involved the submission of false claims to Services Australia for Commonwealth welfare payments, specifically Disaster Recovery Payments and Pandemic Leave Disaster Payments, with the intention of dishonestly obtaining a financial gain.

The first offence covered claims submitted by the offender alone between February 2019 and December 2021. Over that period she lodged 74 claims using fabricated names, dates of birth, and addresses, with 56 of those claims granted and a total of $70,800 paid out. A further claim in her own name, falsely asserting flood damage to a vacant property in Queensland, resulted in a payment of $1,400.

The second offence was committed jointly with the offender's then partner. Between February 2019 and August 2021, the pair submitted 46 claims, 39 of which were granted, resulting in payments totalling $40,200. Across both counts, the total fraudulently obtained from the Commonwealth was substantial. The scheme exploited emergency relief payment systems designed to assist people affected by floods, bushfires, cyclones, and the COVID-19 pandemic.

  • What sentence was appropriate for two offences of dishonestly obtaining a gain from the Commonwealth under s 135.1 of the Criminal Code 1995 (Cth), given the nature, scale, and duration of the offending?
  • Whether the circumstances of the offender, including any relevant personal, health, or rehabilitative factors, warranted a non-custodial or community-based disposition in preference to full-time imprisonment.
  • Whether an Intensive Correction Order (ICO) under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was an appropriate vehicle to serve the sentence in the community.

Decision

Bourke SC DCJ characterised the offending as serious. The fraud was sustained over a lengthy period, involved deliberate and repeated use of fabricated identities, and exploited emergency payment systems put in place to assist genuine disaster victims. The sentencing judge noted that the offender went so far as to construct elaborate fictional narratives during telephone calls to Services Australia in order to support false claims.

The judge acknowledged significant sentencing factors in the offender's favour. These included the guilty plea, the offender's personal circumstances, mental health considerations, and the assessment that a custodial environment was unlikely to provide the treatment necessary to reduce the risk of reoffending. The Crown's concession also appears to have played a role in the final disposition.

His Honour stated expressly that his initial intention had been to impose full-time imprisonment. After careful consideration and taking into account the Crown's position, the court instead imposed a head sentence of two years and six months but ordered that it be served in the community by way of an ICO. The judge made clear to the offender that the ICO is a term of imprisonment, and that any breach would result in the balance being served in actual custody.

Orders Made

  • The offender was convicted on both counts.
  • A head sentence of two years and six months' imprisonment was imposed.
  • Pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence was ordered to be served in the community by way of an Intensive Correction Order (ICO) commencing 20 August 2024.
  • Standard conditions: the offender must not commit any offence during the period; she must submit to supervision by Community Corrections for the term of the order.
  • Additional conditions imposed:
  • Engage in psychological treatment with a nominated practitioner or as directed by Community Corrections.
  • Engage in any other counselling or treatment as directed by Community Corrections.
  • Not engage in any form of gambling.
  • Not consume alcohol.
  • Take medications as recommended by her general practitioner.
  • The offender was directed to report to Community Corrections at Liverpool by 23 August 2024.

Key Takeaways

  • Systematic fraud targeting Commonwealth emergency disaster relief payments, conducted over multiple years using fabricated identities, was treated as objectively serious offending warranting an initial consideration of full-time custody.
  • An ICO, while serving as an alternative to full-time imprisonment, remains a custodial sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW). The District Court reinforced this by warning the offender that breach would result in the remainder being served in actual custody.
  • Personal circumstances, mental health considerations, and the likely unavailability of appropriate treatment in a custodial setting can, in combination with a guilty plea and prosecutorial concessions, support a community-based disposition even for sustained and sophisticated fraud.
  • Where claims exploit emergency systems designed for genuine disaster victims, including fabricated references to natural disasters and the COVID-19 pandemic, courts will weigh the exploitation of those systems as an aggravating feature of the offending.
  • The maximum penalty of ten years' imprisonment under s 135.1 of the Criminal Code 1995 (Cth) was treated as an important guidepost in calibrating the sentence, consistent with established sentencing principle.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 135.1
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7

Cases
- Chan v R [2023] NSWCCA 206
- De Faria v The State of Western Australia [2013] WASCA 116
- Stanley v DPP [2003] HCA 3
- Totaan v R [2022] NSWCCA 7