Ivanovic v R

Court of Criminal Appeal (NSW)|2009-02-03|Before: Grove J, Blanch J, Johnson J

CITATION: Ivanovic v R [2009] NSWCCA 28

JUDGMENT OF: Grove J at 16; Blanch J at 1; Johnson J at 17

DECISION: Application for leave to appeal refused. Appeal dismissed.

CATCHWORDS: Criminal law - Social Security fraud - discount for plea of guilty

LEGISLATION CITED: Crimes Act, 1914 (Cth), s29B Criminal Code, 1995 (Cth), s135.1(5)

CASES CITED : Tyler v The Queen (2007) 173 A Crim R 458 Regina v Jennifer Rose Purdon CCA NSW unreported 27 March, 1997

PARTIES: Vlajko Ivanovic (Applicant) Regina (Respondent)

COUNSEL: P Lange (Applicant) W Abraham QC (Respondent)

SOLICITORS: S E O'Connor, Legal Aid Commission (Applicant) Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: CE O'Connor DCJ

LOWER COURT DATE OF DECISION: 14 March, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Vlajko Ivanovic

1 BLANCH J: On 14 March 2008 the applicant was sentenced in the District Court on four counts of impose upon the Commonwealth by an unfair representation contrary to s 29B of the Crimes Act 1914 and three counts of dishonestly causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code 1995, the maximum penalty for each of the offences under s 29B of the Crimes Act is two years imprisonment and the maximum penalty in respect of the Criminal Code offences is five years imprisonment.

2 On each of the Crimes Act offences he was sentenced to nine months imprisonment to date from 14 March 2008, and on each of the Criminal Code offences he was sentenced to two years imprisonment to date from 13 December 2008, but with a recognisance release order for him to be released on 13 March 2009, on entering into a recognizance to be of good behaviour until 13 March 2010.

3 The applicant seeks leave to appeal against the sentences on the basis that the sentencing judge erred in failing to discount the sentences by reason of the applicant's early plea and his willingness to facilitate the course of justice.

4 The four offences contrary to s 29B were as follows: 1. Between 15 August 2000 and 29 August 2000 he obtained a disability support pension in his own name but omitted to inform the Commonwealth he was employed and in receipt of an income. He was overpaid $506.96. 2. Between 10 October 2000 and 24 October 2000 he obtained a disability support pension, again failing to inform the Commonwealth he was employed and receiving an income. He was overpaid $476.96. 3. Between 10 November 2000 and about 10 May 2001 he received a Newstart allowance in a false name of Marko Marjanac at a time he was receiving a disability support pension. He was overpaid $5757.80. 4. Between 15 February 2001 and 22 May 2001 he received a disability support pension when failing to inform the Commonwealth he was in receipt of workers compensation payments. The overpayment was $1865.74.

5 The three offences under the Code were as follows: 1. Between 24 May 2001 and 22 November 2001 he received a Newstart allowance in a false name whilst he was receiving a disability support pension. The overpayment was $6348.37. 2. Between 5 June 2001 and 21 September 2004 he received a disability support pension and when he did so he did not disclose his correct assets or that he was in receipt of workers compensation. The overpayment was $27,649.98. 3. Between 10 September 2004 and 10 March 2005 he received a Newstart allowance in the false name of Marko Marjanac when he was in receipt of a disability support pension. The overpayment was $6406.84.

6 In total he was paid $57,498.59 in Newstart allowance and disability support pension and of that amount $49,012.64 represented the overpayment. The applicant has made full restitution of the amount to the Commonwealth.

7 The applicant was born in March 1947 and came to Australia from the former Yugoslavia in 1966. He has convictions in 1973 for stealing and goods in custody. He received a six months suspended sentence plus fines. Later in 1973 he received fines for resisting arrest and unseemly words, and in 1990 at Liverpool District Court he was released on a bond to be of good behaviour for three years for malicious injury to property and ordered to pay compensation of $10,302.95. At the sentencing hearing reports were tendered which indicated that the applicant injured his lower back in 1985 working as a builder. He received compensation of $40,000 plus a weekly payment, and in 1994 he was awarded a disability pension. In 1997 he started working again under the false name of Marko Marjanac, and in 2000 he fell from scaffolding injuring himself. The report of Dr Sokolovic indicates that his physical condition has deteriorated and he has had regular medication for his diabetes, hypertension and heart problems.

8 All of these subjective matters were taken into account by the sentencing judge, and the question agitated before this court is whether the judge has imposed too heavy a sentence, in particular because he failed to give appropriate recognition to the plea of guilty.

9 In his remarks on sentence the trial Judge said: "I have also taken into consideration the plea of guilty which was entered at the Local Court. The plea was entered shortly after the service of the prosecution brief of evidence. The plea of guilty is some evidence of remorse and contrition. However, any leniency as a result of such remorse on this basis is minimal having regard to the strength of the Crown case. Of more significance is the fact the offender has made reparation to the Commonwealth in the amounts he defrauded which is further evidence of his contrition. I have taken the plea of guilty together with his remorse and reparation into account in determining the appropriate sentence, such matters entitling the offender to an element of leniency. The offender has co-operated with the authorities in the investigation of the offences, having made full admissions during his record of interview which was conducted on 20 June 2005. I take this matter into account in favour of the offender."

10 In these statements it is plain the sentencing judge was bearing in mind the fact the applicant had entered a plea of guilty at an early stage and he said he was taking it into account, together with other matters such as remorse and reparation. There is no basis for doubting that the sentencing judge gave full weight to the fact of the plea of guilty. In Tyler v The Queen (2007) 173 A Crim R 458 at paragraph 114 it was said: "Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron . This specifically excludes reference to the utilitarian value of the plea. Since the test is a willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by willingness to facilitate the course of justice, or, pragmatically, for example, the recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty."

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.

14 This court will interfere with a sentence imposed if it can be shown the sentencing judge was in error, and then only if the court forms the opinion that some other less severe sentence is warranted in law and should be passed. In my view in this case the judge has made no error, and I am also of the view that in the circumstances of this case no less severe sentence should have been passed.

15 I would refuse the application for leave to appeal and dismiss the appeal.

18 GROVE J: The orders of the court will therefore be as proposed by Justice Blanch.

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