Commonwealth Service Delivery Agency V Marcus John BRASZELL [2009] NSWLC 13

LEGISLATION CITED: Crimes Act 1914 (Cth) s. 3ZL; s. 16A; s. 17ACriminal Code 1995 (Cth) s. 135.2(1)

Cameron -v- The Queen (2002) 209 CLR 339 Charkowi [2008] NSWCCA 159 CASES CITED: Grenfell [2008] NSWCCA 162Hinton (2002) 134 A Crim R 286 Ivanovic [2009] NSWCCA 28 Shen [2009] NSWCCA 251To [2007] NSWCCA 200 Zamagias [2002] NSWCCA 17

REPRESENTATION: Ms Chan for the DPP (Cth) (on sentence) Mr P Robb, Solicitor of Robb & Associates Solicitors of Albury for the offender

On 11 August 2009 after a hearing that went over part of two days the following offences were found proven against the offender: (He) between 13 October 2004 and 2 January 2007 at Albury in the State of New South Wales engaged in conduct and as a result of that conduct obtained a financial advantage for himself, namely Disability Support Pension at a higher rate than otherwise entitled, from another person, namely Centrelink, a Commonwealth entity, knowing or believing that he was not eligible to receive that financial advantage, and further that (He) between 11 April 2007 and 25 March 2008 at Albury in the State of New South Wales engaged in conduct and as a result of that conduct obtained a financial advantage for himself, namely Disability Support Pension at a higher rate than otherwise entitled, from another person, namely Centrelink, a Commonwealth entity, knowing or believing that he was not eligible to receive that financial advantage.

Both of these offences are contrary to section 135.2(1) of the Criminal Code 1995 (Cth). The matters were defended, and accordingly, there can be no allowance or consideration for the offender facilitating the course of justice - see Cameron -v- The Queen (2002) 209 CLR 339. That is not to suggest that the penalty is in any way increased because the matters were defended - rather the situation is that there cannot be any discount (to use the expression relevant to state sentencing exercises) or consideration for the facilitation of the course of justice. However, Mr. Robb argues that that matter was run economically, and essentially on one issue only, and accordingly, there should be some consideration. I agree with that submission, but the consideration is not significant.

The maximum sentence that can be imposed in respect of these matters is 12 months imprisonment in respect of each charge. This is to be taken as the maximum penalty as opposed to the jurisdictional limit of the Local Court.

As the matters were defended it is for me to determine the facts of the matter for the purposes of proceeding to sentence. The facts are within a short compass. At all relevant times the offender was entitled to receive the Disability Support Pension. He was also entitled to supplement the pension income by working at paid employment. However, he was obliged to report his earnings to Centrelink on a fortnightly basis. The offender was informed of his obligations at the time of the initial grant or approval of the pension, and I am satisfied beyond reasonable doubt that he was also regularly informed by letter or other documents of these obligations. During the periods set out in the averments in the Court Attendance Notices the offender was employed on a part time or casual basis by the Mercy Centre of Albury. This centre attended to the care of patients with various disabilities. His income varied according to the number of hours that he worked. He was able to report his earnings by a number of means. The more usual means the offender used was to report his earnings by using a telephone service. Over the periods set out in the averments in the Court Attendance Notices the offender consistently, repeatedly, and knowingly understated the amount of his earnings obtained at the Mercy Centre to Centrelink. This resulted in him being paid the Disability Support Pension at a higher rate than to which he was entitled. This conduct occurred over a period of approximately three and one half years. The amount of money obtained by way of overpayment - that is to say by the fraudulent or dishonest conduct was $27, 590.84. I am satisfied that that is a considerable sum of money, and indeed is approximately half the average weekly earnings of wage earners within Australia.

Given the period over which the conduct occurred and the amount of money obtained I am of the opinion that the offending is over the half way mark of objective seriousness of matters of this type that routinely come before this court, particularly taking into consideration that the maximum penalty is 12 months imprisonment.

The offender is now 50 years of age. His criminal history is not such that it could be taken into account as an aggravating factor. However, I am of the opinion that his criminal history is such that he is not entitled to any particular leniency. He has convictions in 1983 in Victoria for obtaining property by deception, convictions in 1987 for burglary and theft in respect of which custodial sentences were imposed, further minor matters of dishonesty in 1990, convictions in 1993 for obtaining property by deception, and in 2000 convictions for theft from a shop and possession of property being the proceeds of crime. Also in Victoria (Supreme Court) he was convicted in 1983 of conspiring to import heroin in respect of which he received a 5 year good behaviour bond. In New South Wales in 2001 he was granted a good behaviour bond for the offence of having goods suspected of being stolen in his custody. As Mr. Robb submitted, the record is that of a person who has had an ongoing difficulty with addiction to drugs.

The Courts of Criminal Appeal of all Australian jurisdictions have indicated over the years that social security fraud is to be dealt with seriously. Deterrent sentences must be imposed. Social security fraud is an impost on the honest taxpayer. The offences are easy to commit but difficult to detect and complicated to prosecute.

Recently, the New South Wales Court of Criminal Appeal, by which I am of course bound, reviewed some of the authorities and restated principle. In Ivanovic -v- The Queen [2009] NSWCCA 28 Blanch J. (Grove & Johnson JJ agreeing) said at [11]-[13]: "11 The sentencing judge referred in his remarks on sentence to the decision of the Court of Criminal Appeal in Regina v Jennifer Rose Purdon CCA NSW unreported 27 March 1997 where Hunt CJ at CL said: "...in the case of a fraud upon the social security system, a custodial sentence is to be imposed unless there exist very special circumstances justifying some lesser order. It is unnecessary to refer to the very many judgments which have re-stated and applied that proposition. It is sufficient to refer only to three: Regina v Van Tung Luu (CCA, 7 December, 1984, unreported) at 3; Regina v David Fernanda Medina (CCA, 28 May 1990, unreported) at 4; Regina v Mears (1991) 53 A Crim R 141 at 145. An attempt was made to distinguish those cases by reference to their facts, but those statements made were intended to go beyond the facts of those particular cases and to be of universal application. In my view, it is too late to challenge those statements now."

12 He went on to say: "The rationale stated for the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. Both types of fraud are widespread. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer. See Regina v David Fernanda Medina (at 6); Regina v Mears (at 145)."

13 Those statements of principle are as valid today as at that time. The fraudulent activity here was planned and over a number of years. It justifies a sentence which reflects a significant element of general deterrence".

In the matter of Ivanovic the amount of the fraud was $49,012.64. The sentence imposed in that matter, that sentence being affirmed on appeal was a total sentence of two years with a non-parole period of 12 months. That was of course, after a plea of guilty and due allowance being made for the facilitation of the course of justice. The money had been repaid. The subjective matters are not entirely dissimilar to the matter presently under consideration.

More recently there was the decision of Grenfell [2009] NSWCCA 162. That was factually very different and indeed far more serious than the matters on which I have to pass sentence. However, the need for general deterrence was again emphasised. Harrison J. in giving the leading judgment at [40] said: The Crown emphasised the line of authorities that underscores the heavy penalties that those who defraud the social welfare system might expect to encounter. See, for example, R v Sopher (1993) 70 A Crim R 570; R v Hinton [2002] NSWCCA 405, (2002) 134 A Crim R 286; R v Purdon (Court of Criminal Appeal, 27 March 1997, unreported). The importance of general deterrence when sentencing for offences of this type has also been emphasised: see R v Keir [2004] NSWCCA 106; Bick v R [2006] NSWCCA 408 at [16]; R v Purdon (supra).

Similar statements were made in the earlier decision of Charkawi [2008] NSWCCA 159 at [31]. Clearly, I am obliged to impose a sentence that contains a "significance element of general deterrence".

In accordance with the usual practice in this court a pre sentence report was ordered where a full time custodial sentence is within the appropriate sentencing range. I am yet again indebted to the Albury office of the Probation and Parole Service for the report. The report indicates that the offender's response to previous supervision order was positive. He was in a relationship for about two years, but the person who was his partner has become a very supportive friend. The offender also enjoys the support of an older sibling. He readily admitted to his past involvement with illicit substances. Checks with the offender's employer, the Mercy Centre indicate that the offender is well thought of at that facility.

In respect of the offending, he maintains that his "lack of care not giving correct information to Centrelink" and his "bad awareness at the time" led to the offending. He expressed disappointment at his lack of judgment. I accept that the words "Lack of judgment" may well be those of the author of the report rather than those of the offender however, they understate the criminality involved in the commission of the offences on which I now have to pass sentence.

The author of the report assesses that the offender is unlikely to require or benefit from supervision. He is suitable for community service and ineligible for periodic detention. Although the offender if suitable for community service I am of the firm opinion that such a disposition would be inadequate in the circumstances of this matter.

Mr. Robb is to be commended on the plea in mitigation. The plea was very well structured, and nothing more could possibly have been done or said. Initially, the seriousness of the matter was accepted. It was put and I accept that the offender became addicted to opiates while serving with the Army in Southeast Asia. It was put, and I accept, that the record is consistent with someone who has had an addiction to illicit drugs. The offender is single. He initially obtained an apprenticeship as a boilermaker in Melbourne, and later joined the Army. He began experimenting with drugs only after joining the Army and continued with his use of heroin after discharge. Further, so far as the record is concerned, it was put, and I accept that the 1993 convictions recorded at the Prahran Magistrates Court relates to conduct in 1986.

Further, it was put and I accept that the offender has earned himself a good reputation as a Disability Care Worker at the Mercy Centre. A number of testimonial references were tendered. I also note in this regard that the independent checks conducted by the Probation Service confirm this. I accept that convictions in these matters, apart from any sentence disposition may well lead to the termination of the offender's employment with the Mercy Centre.

I also accept that the offender has considerable issues relating to his health. A hand written report from Dr. Poupa (treating General Practitioner) sets out that the offender is diabetic, suffers from anxiety and depression, a panic disorder and other complaints. The report also sets out the medication that the offender is presently taking.

So far as the offending was concerned, Mr. Robb put that the matters on which I have to pass sentence were not particularly sophisticated and that the conduct was always going to be detected. Certainly, it was not the case of multiple identities and the like. The offender did declare some earnings. Detection came as a result of cross checks between Centrelink and the Taxation Department. Mr. Robb also emphasised that in Purdon (cited in Ivanovic) the maximum penalty was five years imprisonment. I also note that the maximum penalty in some of the matters in Ivanovic was also five years imprisonment. Mr. Robb also argues that there was considerable delay on the part of the authorities to the extent to where that delay should be taken into account in mitigation.

One of the more recent decisions on the aspect of delay and its effect on sentence is Morris [2008] NSWCCA 115. Hoeben J (James & Hall JJ agreeing) sat at [60]-[61]: The leading decision on delay remains R v Todd (1982) 2 NSWLR 517 and in particular the remarks of Street CJ, to which his Honour did refer. It would have been preferable, however, when referring to Todd for his Honour to have made it clear that some of the important considerations referred to by Street CJ did not exist here, eg the situation where rehabilitation has progressed significantly during the period of delay and where an offender has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a later occasion. 61 Nevertheless, the decision in Todd does provide support for the approach of his Honour in this case, particularly given its unusual circumstances: "... sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach - the passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

In the circumstances of this case, his Honour was justified in placing considerable weight on delay when sentencing the respondent in respect of count 1.

In the matter presently under consideration the closing date of the second count is October 2007. The offender entered into a recorded interview with Centrelink in March 2008. The Court Attendance Notices did not issue until 3 March 2009. I am of the opinion that the delay is such that the offender should get some relatively small amount of consideration. The delay, however, is not the lamentable type of delay as was the case in Todd.

Mr. Robb went on to submit that the offending ceased after the interview with Centrelink, and further that arrangements have been put in place for the repayment of the moneys. I have previously referred to the submission as to the manner in which the case was conducted. I was reminded of the generally positive tenor of the pre sentence report.

Ultimately it was put that in all of the circumstances I would impose a sentence of imprisonment but release the offender immediately by means of recognisance pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) - in effect a suspended sentence.

The Crown helpfully reduced submissions to writing, and spoke briefly to those submissions. Ultimately, the Crown submitted that a sentence of full time custody was the only appropriate sentence. I was reminded that a sentence of custody is the sentence of "last resort". The Crown reminded me that the offending conduct occurred over a period in excess of three years and involved an amount of $27,000. It was submitted, and I accept that the offence was part of an ongoing course of conduct, by the offender consistently under-reporting his income from the Mercy Centre. In this regard the Crown emphasised that in the period covered by the offences the offender earned a total of $103,151.61 but declared only $29,073.19 of that income. The need for general deterrence was emphasised.

Section 17A(1) of the Crimes Act 1914 (Cth) provides that a sentence of imprisonment should not be imposed unless the court considers that such sentence is the only appropriate sentence in the circumstances of the case. In the matter presently under consideration I have come to that conclusion.

I am also required to consider the provisions of s. 16A of the Crimes Act 1914 (Cth). Given what I have already said within these remarks most of the matters can be dealt with reasonably quickly. I am obliged to pass a sentence that is appropriate given all of the circumstances of the offence. I have already assessed the objective seriousness of the matter. There are no other matters to be taken into account. I am obliged to take into account that the offending is part of an ongoing course of conduct. I have referred extensively to the personal circumstances of the offender, particularly his current state of health. The extent of the loss as a result of the offence is the amount of $27,000. I accept that there is no contrition. The lack of contrition, however, is not to be taken as an aggravating factor - it simply means that there is no consideration in mitigation of penalty for contrition. Co-operation with the authorities is not relevant in this matter, but I note that the offender voluntarily gave an interview. I accept that there is need for significant general deterrence. I am obliged to pass a sentence that ensures that the offender is adequately punished. I have referred and dealt with the issues of age, physical and mental condition and character. I accept that there is no significant chance of re-offending. The offender has no dependents, but the issue of s. 16A(2)(p) is of little significance given the decision of the New South Wales Court of Criminal Appeal in R -v- Hinton (2002) 134 A Crim R 286 at [31].

Having arrived at the conclusion that no other sentence other than imprisonment is appropriate, I am obliged to consider whether that sentence should be suspended. The Crown argues that there are no reasons as to why any sentence should be suspended. Mr. Robb argues that given the age and significant health issues of the offender I should suspend any sentence. In R -v- Zamagias [2002] NSWCCA 17 at [32] Howie J. said: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."

In the matters presently under consideration there are no significant issues of rehabilitation. In any event, I am of the opinion that given the extent of the offending taken with the need for general and specific deterrence, that it would be entirely inappropriate to suspend the sentence I am about to impose.

Further, on the issue of whether the sentence should be suspended, in the decision of R -v- Tolley [2004] NSWCCA 165 Howie J. said at [22]: "A suspended sentence has often been described as a 'sword of Damocles' hanging by a thread over the head of an offender while the period of the period of the bond is current. However in R -v- Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]: 'This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equate to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the 'sword' shrinks until if finally becomes a butter knife'."

The offences on which I have to pass sentence are Commonwealth offences, and accordingly, the State Crimes (Sentencing Procedure) Act 1999 does not apply. However, I have to consider the length of time the offender will actually spend in custody. In R -v- TO [2007] NSWCCA 200 Hulme J. gave the leading judgment of the Court, Handley AJA and Hall J. agreeing. However, Handley AJA gave a statement of general principle at [7] in that: "The sentencing decisions for these Commonwealth offences considered by my brethren, together with R v A [2004] NSWCCA 292, show that as a matter of practice the non-parole period for these offences has not been less than 60% and generally, but not always, not more than 66% of the head sentence".

The New South Wales Court of Criminal Appeal recently accepted this as a matter of general principle in R -v- Shen [2009] NSWCCA 251.

There are two offences on which I have to pass sentence. Although there are two offences, they relate to the one ongoing course of conduct. I am satisfied that the sentence in respect of one can adequately reflect the criminality involved in the other - see R -v- Cahyadi [2007] NSWCCA 1.

In all of the circumstances of these matters I am of the opinion that a total sentence of 9 months imprisonment is appropriate. Given the matters referred to within these remarks I am of the opinion that the offender should be released on recognisance after serving 5 months. My formal orders are: In each matter you are convicted. Consequent upon those convictions in each matter you are sentenced to imprisonment for a period of 9 months. I direct that after serving 5 months you are to be released upon you entering a recognisance self in the sum of $500 to be of good behaviour for the period of 12 months. You are to be supervised by the Probation and Parole Service for that period of 12 months. I further make a Reparation Order in favour of the Commonwealth, namely the Commonwealth Services Delivery Agency in the amount of $26,398.04. I further direct that pursuant to s. 3ZL of the Crimes Act 1914 you submit to having your fingerprints taken.

Gordon Lerve Magistrate Albury Local Court 13 October 2009.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.