Assie v R

Factual background

1. Both offences were committed in the context of a fraudulent scheme designed, organised and facilitated by the applicant and her late husband in which they gave advice and assistance to various people to obtain from the Commonwealth a range of social security benefits (including "carer payments" and "carer allowances") to which they were not entitled.
2. A "carer payment" is an income support payment paid fortnightly to a person who performs the role of carer for another person who has a disability or a severe and disabling medical condition and where, due to the demands of that role, the carer is unable to undertake full-time paid employment. A "carer allowance" is an income supplement for people who provide daily care to another person with a disability or severe and disabling medical condition in that person's home. That allowance is often paid in addition to another income support payment, such as a carer payment. Claimants for either benefit are required to submit a signed claim form to Centrelink, together with a Medical Report Form completed by a treating health care professional declaring the nature and extent of the care that is to be provided to the care recipient.
3. Both welfare payments are paid to those entitled to receive them upon lodgement of a written claim with Centrelink using forms that are typically generated and issued by Centrelink on request. Those forms are in the form of a "Carer Questionnaire" requiring the claimant to provide information as to the behaviour, functional ability and care needs of the care recipient.
4. The conspiracy commenced on 8 February 2013. It continued after the execution of a search warrant on 13 September 2013 at the home at which the applicant resided with her husband and children, and continued for a further three months after the death of the applicant's husband on 17 June 2015 until 3 September 2015. The total amount of welfare payments paid by Centrelink to the four "customers" (also named in the indictment as co-conspirators) was $137,397.06.
5. During the currency of the conspiracy the applicant and her husband and then, after his death, the applicant acting alone received cash payments from each of their four named "customers" in exchange for completing and lodging the relevant claim form with Centrelink on their behalf, inclusive, in each case, of lodging a Medical Report Form purportedly signed by a registered health care professional. A portion of the cash payments received by the applicant and her husband were paid to medical practitioners who had provided false medical reports.

The objective seriousness of the applicant's offending

1. An agreed statement of facts was tendered in the sentence proceedings from which the following overt acts of either or both the applicant and her husband in furtherance of the conspiracy are identified: 1. Sections of Centrelink claim forms were completed by the applicant and her husband (or by the applicant alone) in support of the false claims for "carer payments" or "carer allowances" and lodged with Centrelink by registered mail. 2. Medical practices were contacted and appointments made on behalf of customers, on some occasions the applicant falsely representing herself as the customer. 3. On some occasions, customers were instructed by the applicant or her husband to obtain written referrals from their general practitioner to a nominated specialist. 4. On other occasions, the applicant accompanied customers to appointments with medical practitioners. 5. The applicant contacted former customers after her husband's death to obtain successful examples of Centrelink forms that he had completed before his death. 6. Customers were advised in coded communication as to the amount of cash they were expected to pay the applicant and her husband. 7. Customers were met by arrangement with the applicant to receive cash payments, sometimes in public toilets. 8. The applicant made cash payments to medical practitioners at the conclusion of appointments she attended with customers.
2. On occasions, the applicant provided advice to her customers as to how they should deal with Centrelink in the event that any of the claims were subject to review. On other occasions, the applicant introduced customers to each other, encouraging them to falsely claim respective carer payment and carer allowances on the basis that one was providing care to the other. Where there was a dispute as to the amount each would receive, the applicant mediated the dispute.
3. The applicant used at least five different mobile telecommunications services to speak with her husband, customers and Centrelink. Of those services, three were falsely subscribed.
4. The agreed facts set out in detail the circumstances in which each of the four customers were introduced to the applicant and her husband, and the various places in which each of them carried out their role as customers of the welfare fraud and as co-conspirators in the conspiracy. It is not necessary for the purpose of these proceedings to set out that evidence.
5. During the execution of a search warrant on 13 December 2013, the applicant and her husband were found to be in joint possession of $244,950, comprised of 25 bundles of $50 notes packed into white envelopes. The monies were located in a property which the applicant and her husband had rented from Housing NSW since 1999. Those monies were the subject of the second count on the indictment.
6. The applicant had not been in paid employment since 1990 and had been in receipt of welfare benefits for the three years prior to the seizure of the money because of a medical condition or disability she reported to Centrelink. Neither the applicant nor her husband reported any taxable income in the years July 2008 to June 2014.

The findings of the sentencing judge

1. The sentencing judge found the offending comprehended by the conspiracy at towards the upper part of the mid-range of objective seriousness and the offending the subject of the proceeds of crime offence in the mid-range. These findings were not challenged on the hearing of the application for leave to appeal.
2. The sentencing judge described the conspiracy as sophisticated and found that those involved, including the applicant, were committed to achieving the fraud on the Commonwealth which was the object of the conspiracy. The sentencing judge noted that neither the applicant nor her husband were apparently deterred from their commitment to achieving that objective by the seizure of a large amount of cash during the currency of the conspiracy.
3. The sentencing judge was satisfied that the applicant played a prominent and active role in the agreement with her husband and their co-conspirators to defraud the Commonwealth. He was satisfied the applicant was equally culpable with her husband and that both were "architects" of the fraudulent scheme, even if in the early stages of the conspiracy the applicant's husband played the more dominant role. The sentencing judge was also satisfied that the applicant's role was central to achieving the perpetration of the welfare fraud and that her sole motivation was greed.
4. He noted that the applicant received at least $11,000 for her role in the conspiracy. He did not regard that as reducing the overall objective criminality comprehended by her offending.

The issue of parity

1. Insofar as the sentences imposed on the four co-conspirators who were customers of the welfare fraud, two of whom were dealt with in the District Court and two of whom were dealt with in the Local Court, it is not submitted on the appeal that the sentencing judge misapplied parity principles. His Honour noted not only the different jurisdictional limits in the Local Court but also the different and more limited roles the customers played in the conspiracy by agreeing to utilise the services the applicant and her husband offered as the facilitators and organisers of the welfare fraud, which distinguished them from the applicant for sentencing purposes. His Honour also noted that, unlike the applicant, each of the co-conspirators had entered an early plea of guilty and, in relation to two of them, an additional discount was applied to their sentences for their assistance to the authorities.

The applicant's subjective circumstances

1. With regards to the applicant's subjective circumstances, the sentencing judge appears to have accepted that she lived with her three adult children, aged 20, 24, and 30, each of whom have learning disabilities of varying degrees of severity and that her dominant source of income was a disability support pension.
2. The sentencing judge also noted that the applicant was married to her husband by arrangement at the age of 18 and that he was her first cousin. The applicant's son gave evidence that his father was very demanding and controlling and that he witnessed his mother being subjected to violence and aggression from him. He also gave evidence that his father was well known in the Lebanese community, that he socialised widely and that his nickname was translated as "The King".
3. His Honour noted that, despite there being evidence of family violence and that the applicant's deceased husband was controlling and aggressive, no submission was advanced that she was bullied or manipulated into joining with him in the conspiracy alleged. He was satisfied that the applicant exercised a choice in involving herself in the conspiracy, so much being evident from the fact that she continued the offending behaviour after her husband's death.
4. The sentencing judge accepted that despite the limited expressions of regret disclosed in the Sentencing Assessment Report, the applicant was remorseful and had accepted responsibility for her offending behaviour. Given the amount of publicity that had been given to the exposure of the applicant and her husband as people committed to undermining the welfare system for personal greed, which his Honour accepted had a salutary effect upon the applicant, he found her prospects of reoffending were low. He also considered that the delay in bringing the prosecution also supported her favourable prospects of rehabilitation since she had not offended in the interim.
5. The applicant's son gave evidence on sentence that he visited his mother regularly and observed that she displayed emotional distress and "depression". He also spoke of his mother's contrition and described her medical conditions as including compromised eye sight and medication for he described as "blood clots".
6. A report from Dr Nielssen, forensic psychiatrist, was tendered on sentence. The report was prepared whilst the applicant was on bail but after pleas of guilty had been entered. Dr Nielssen noted a range of prescribed medications to address the applicant's high cholesterol, indigestion and a blood thinning agent. He ultimately diagnosed a depressive disorder based on the applicant's reported poor sleep, being easily moved to tears, loss of appetite, weight loss and thoughts of "wanting to die". Dr Nielssen acknowledged, as did the sentencing judge, that the applicant's experience of full-time custody as a woman in her 60s, with concerns for her three intellectually disabled children who remain in her care, would make her experience as a sentenced prisoner more onerous.
7. The sentencing judge rejected the applicant's account to Dr Nielssen in which she sought to diminish her appreciation or understanding of the fraudulent scheme the subject of the conspiracy, however he did accept that having been married to her first cousin by arrangement at the age of 18 would have been productive of a significant power imbalance in the marriage. He also accepted that the applicant's limited formal education meant that she relied upon her husband for designing the formal aspects of the scheme and its operation.

The third ground of appeal

1. Although the applicant's counsel did not challenge the sentencing judge's ultimate finding that the objective criminality comprehended by the conspiracy was in the upper range of the mid-range of objective seriousness, she contended that the sentence that was ultimately imposed reflected offending in what she described as "the top end" or "high range", being reflective of an offender who was more extensively involved in a conspiracy to defraud the Commonwealth than the applicant who had, according to counsel, merely facilitated the payment of benefits to "customers" and where the financial benefit to her personally did not exceed $11,000.
2. Counsel also submitted that the sentence imposed was excessive being more commensurate with a conspiracy to commit welfare fraud at a higher level of sophistication than what was exposed in the conspiracy in which the applicant had involved herself, inclusive of the range of overt acts which were committed in furtherance of the conspiracy, many of which were the applicant's acts alone. Finally, counsel submitted that the applicant's strong subjective case entitled her to greater leniency than what was reflected in the aggregate sentence.
3. Counsel did not refer the court to any statistical range or comparative sentences supportive of the proposition that either the sentence indicated for the conspiracy or the extremely lenient sentence indicated for the proceeds of crime offence were excessive or that, after application of totality principles, the aggregate sentence exceeded the legitimate reach of the sentencing judge's discretion. I reject counsel's submission that in the sentencing judge's approach to sentence he failed to take into account the applicant's favourable subjective circumstances, or that he failed to properly synthetise those factors within s 16A of the Crimes Act 1914 (Cth) which were material to the sentencing exercise.
4. For those reasons and where, in my view, it was essential that the aggregate sentence reflect the need for general deterrence, the sentence is neither "unreasonable" nor "plainly unjust", I would refuse leave to advance the third ground of appeal.

The first ground of appeal

1. Additionally, there is, in my view, nothing in either the reasons for sentence or the transcript of the proceedings on sentence to support the submission maintained on the hearing of the appeal that the applicant was denied procedural fairness, either because the sentencing judge had given counsel who appeared on sentence to "understand or expect" that a sentence of 4 years and 2 months was the sentence he was minded to impose as an aggregate sentence or any suggestion that he was proposing to indicate a sentence of that order for the conspiracy. Nothing was said by the sentencing judge in the course of hearing submissions from the parties or in the sentencing reasons to identify a penalty range or to indicate any sentence in years or months he might be minded to impose. The Crown did not make any submission as to the available sentencing range: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.
2. In the exchange between the Crown and the sentencing judge to which counsel on the appeal referred in support of the submission advanced in support of the first ground of appeal, all his Honour was doing was seeking to position the conspiracy within a range of objective seriousness; a separate issue altogether from the question of a range of sentences that might be imposed for offending he found to be in the high end of the mid-range of objective seriousness.
3. A claim that a party has been denied procedural fairness involves consideration as to whether there has been practical injustice in the circumstances of the case: Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227 at [48]; Weir v R [2011] NSWCCA 123 at [64]-[67]. There is nothing in this case that is even faintly suggestive that the applicant suffered any injustice in the sentencing process, including in the sentencing hearing that preceded the imposition of sentence.
4. For those reasons, I would refuse leave to advance the first ground of appeal.
5. The orders I propose are as follows: 1. Leave to advance the first ground of appeal is refused. 2. Leave to advance the third ground of appeal is refused. 3. Leave to appeal is refused. 4. The appeal is dismissed.

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