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Leonardi v Simmons [2026] ACTSC 294 | Case summary | Zoe

ACTACTSC

Leonardi v Simmons

[2026] ACTSC 294

Supreme Court of the ACT|2026-08-14|Before: Ainslie-Wallace AJ

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Court

Supreme Court of the ACT

Decision date

2026-08-14

Before

Ainslie-Wallace AJ

Catchwords

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – review appeal – instinctive synthesis – subjective circumstances – manifestly excessive – further evidence – no error found – appeal dismissed

Source

Original judgment source is linked above.

Catchwords

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – review appeal – instinctive synthesis – subjective circumstances – manifestly excessive – further evidence – no error found – appeal dismissed

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Leonardi v Simmons Citation: [2026] ACTSC 294 Hearing Date: 4 August 2026 Decision Date: 14 August 2026 Before: Ainslie-Wallace AJ Decision: (1) The application to adduce further evidence in the appeal is dismissed. (2) The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – review appeal – instinctive synthesis – subjective circumstances – manifestly excessive – further evidence – no error found – appeal dismissed Legislation Cited: Crimes Act 1914 (Cth), s 16A(2), 17A Criminal Code (Cth), s 134.2 Judiciary Act 1903 (Cth), s 68(2) Magistrates Court Act 1930 (ACT), ss 214(2), 219D, 219F(1), Pt 3.10 Cases Cited: Agarwal V Coutts (No 2) [2024] ACTSC 92 Garay v The Queen (No 3) [2023] ACTCA 2 Greenwood v Barlee [2018] ACTSC 46 House v The King [1936] HCA 40; 55 CLR 499 Kovacevic v Mills [2000] SASC 106; 76 SASR 404 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Panella v Wanganeen [2018] SASC 100 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 Totaan v R [2022] NSWCCA 75; 108 NSWLR 17 Tracey v The Queen [2020] ACTCA 51 Wong v The Queen [2001] HCA 64; 207 CLR 584 Parties: Gregory Leonardi (Appellant) Anne Simmons (Respondent) Representation: Counsel D Bloomfield (Appellant) S Saikal-Skea (Respondent) Solicitors Legal Aid ACT (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number: SCA 25 of 2026 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 17 July 2026 Case Title: The Police v Gregory Leonardi Court File Numbers: CAN 41306 of 2024 CAN 41333 of 2024 CAN 41337 of 2024 AINSLIE-WALLACE AJ: Introduction

Gregory Leonardi appeals from sentences imposed on him on 17 July 2026, having been convicted on his plea of guilty to three counts of obtaining a financial advantage by deception, brought pursuant to s 134.2 the Criminal Code (Cth).

Part 3.10 of the Magistrates Court Act 1930 (ACT) gives the Supreme Court jurisdiction to hear any appeal against sentence or penalty imposed in relation to Commonwealth offences: s 68(2) of the Judiciary Act 1903 (Cth).
The appeal is a review appeal pursuant to s 219B(1)(f) of the Magistrates Court Act. Section 219D of the Magistrates Court Act provides the grounds on which the review may be conducted, which relevantly include: (a) that there was a prima facie case of error or mistake on the part of the Magistrates Court; (b) that the Magistrates Court did not have jurisdiction or authority to make the decision; (c) that the decision of the Magistrates Court should not in law have been made; … (e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.
The nature of the hearing of the appeal is by way of review in which the appeal court considers the evidence before the Magistrate together with any new evidence if permitted to be adduced.
The principles to be applied were summarised Refshauge J in Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 at [24]: Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows: 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong. 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal. 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court. 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses. 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice. 7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
The fact finder’s advantage was expressed by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: … The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
It is incumbent on the Appellant to establish error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Section 219F(1) of the Magistrates Court Act provides that the Supreme Court may: (a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or (b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.
It is against this legal context that I turn to consider the present appeal.

For a period of about 9 months, the Appellant (sometimes jointly with his wife, Christie-Lee Leonardi) engaged in sustained and deliberate fraud of Services Australia. The Appellant falsely claimed financial assistance to which he was not entitled. He sought and obtained COVID-19 Disaster Payments, Pandemic Leave Disaster Payments, an Australian Government Disaster Recovery Payment and a National Health Emergency Crisis Payment. In all, the Appellant obtained $17,970 and attempted to obtain a further $750.
The offending comprised 49 wholly fraudulent claims. In some, the Appellant claimed and received payments designed to assist people who were unable to work and earn because of the COVID-19 lockdowns. He sought and obtained payment designed to assist people who were in financial hardship and could not earn because they had to self-isolate. The Appellant also sought financial assistance under the National Health Emergency Crisis Payment for people who were in receipt of a social security benefit.
At all material times, the Appellant was employed full time. He lost no work shifts because of any COVID-19 restrictions or the need to remain in lockdown.
The Appellant also obtained money claiming an Australian Government Disaster Recovery Payment which was to help people adversely affected by a declared disaster. The Appellant falsely asserted that he was living in Braidwood, NSW and his house had been damaged by major flooding.
On most occasions, the payments were claimed by the Appellant in his own name. On five occasions, he made claims in the names of other people.
Although there were 49 individual acts of fraud, they were rolled up into three charges each alleging dishonestly obtaining a financial advantage by deception pursuant to s 134.2 of the Criminal Code (Cth). Those charges included one of acting jointly with his wife and one charge included an attempt to obtain funds which were not paid.
The Appellant entered a plea of guilty on the day of the hearing. He was sentenced on 16 July 2026 but became unwell during the sentencing proceedings, so they were continued to completion on 17 July 2026. The Appellant was taken into custody on 16 July 2026.

As it was argued, the gravamen of this ground is the assertion that his Honour commenced the sentencing process from a “prescriptive presumption” that when sentencing for sustained and deliberate social security fraud, “ordinarily” a sentence of imprisonment will be required. It was then argued that, starting from that base, the Magistrate failed to give any, or any proper, consideration to the sentencing principles contained in s 16A(2) of the Crimes Act 1914 (Cth).
That is, rather than first considering the nature and circumstances of the offences and the and other sentencing principles to come to a determination of whether a custodial sentence is appropriate and, if so, how that sentence is to be served, his Honour started at the point that a custodial sentence would “ordinarily” be imposed and then considered the other matters from that starting point.
Further, it was argued that having commenced from a starting point of imposing a sentence of imprisonment, his Honour did not have regard to the provisions of s 17A of the Crimes Act in that he did not turn his mind to whether a sentence other than full time imprisonment was appropriate.
The genesis of this submission lies in exchanges between the Magistrate and the lawyer then appearing for the Appellant concerning an authority relied on by the Prosecution, Kovacevic v Mills [2000] SASC 106; 76 SASR 404 at [40] in which it was said, in relation to sustained and deliberate fraud: In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213.
The Prosecution also referred his Honour to Panella v Wanganeen [2018] SASC 100 at [10] where Peek J said: … I note that it may be taken from the authorities that deliberate defrauding of the Commonwealth such as in the present case will usually call for a custodial sentence due to the primacy of the need for general deterrence. …
Taking up that point in his submissions in reply before the Magistrate, the solicitor for the Appellant referred the Court to Totaan v R [2022] NSWCCA 75; 108 NSWLR 17 and submitted that it would be “quite wrong” to consider Kovacevic as authority for there being a “hierarchy of offences in which general deterrence has primacy because of sustained or ongoing conduct”.
In the course of the submissions, the Magistrate suggested, in clarification of the submissions, that what the Prosecution was saying was that: “in general terms, general deterrence is really important in social security … fraud cases”.
The solicitor for the Appellant agreed.
His Honour then indicated that the second principle that the Prosecution said could be taken from Kovacevic is: … because general deterrence is very important in those kinds of cases, or at least where the conduct involved sustained deliberate social security fraud, imprisonment will ordinarily be required.
The Appellant’s solicitor contended that would have the effect of creating a “type of exceptional circumstance hierarchy” and said: All I say about Totaan is that Totaan is saying that Kovacevic and cases of its kind which say similar things is not meant to establish a hierarchy of default positions for a sentencing court to take in respect to offences of this kind.
His Honour responded: We accept that. Except that it does say where there is sustained and deliberate fraud over a period of time imprisonment is ordinarily likely to be required. …
The Appellant’s solicitor then said: Ordinary versus exceptional. That’s the tension that I am seeking to identify for the court …
His Honour said that he would not introduce “any requirement for exceptional”.
On the appeal, the Respondent argued that a reading of his Honour’s remarks on sentence as a whole demonstrates that he did not start from or indeed feel bound to impose a sentence of full-time imprisonment but reflect that, while his Honour was concerned with general deterrence, he was mindful that all of the aspects of the matter needed to be taken into account.
The Respondent pointed to his Honour’s remark during the discussion about Kovacevic that general deterrence is “really important” in social security fraud cases. Although his Honour quoted Kovacevic at [40], which speaks of an order for imprisonment being “ordinarily likely”, his Honour then pointed out that there remained a need for a consideration of “all aspects” of the matter.
Turning then to his Honour’s sentencing remarks, his Honour referred to and quoted from the cases cited in argument, including quoting from Totaan at [109] where the Court said: The seriousness of the offending is, of course, informed by its surrounding circumstances, including the personal circumstances of the Applicant. Although it is sometimes said, as was submitted by the Crown, that when sentencing for offences such as social security fraud where general deterrence is of particular importance, the personal circumstances of an offender may attract somewhat less weight than they otherwise would, nonetheless, the personal circumstances of the Applicant in the present case are compelling, and bear significantly on the determination of the appropriate sentence.
His Honour said: I take into account the principles I have just described which is to say general deterrence is likely to require a sentence of imprisonment where there is sustained and deliberate fraud over a period of time. But the defendant’s personal circumstances must, of course be taken into account. … Ultimately the defendant submits that he be released upon giving recognisance or alternatively that if he is sentenced to imprisonment that he be released immediately on recognisance. In a case like this, as I have just referred to in the cases general deterrence is of significance. To some extent the defendant needs to be made accountable and to some extent there needs to be a denunciation of his conduct. There needs to be a recognition of the loss suffered to the Commonwealth, albeit he has offered, in a way, to make reparation. To some extent, as well, there needs to be specific deterrence. …
His Honour then imposed the sentences of imprisonment appealed from.

Although not necessarily comprehended in the ground as articulated, the submissions first addressed his Honour’s approach to the Appellant’s subjective circumstances as a whole.
It was argued that his Honour failed to have proper regard to the Appellant’s subjective case and further contends that his Honour did not refer to any of the Appellant’s subjective factors other than “nominally” and was “unduly dismissive or reductive” of those factors. There is nothing in his Honour’s remarks on sentence which lend even a scintilla of weight to the suggestion that he was “dismissive” or “reductive” when dealing with those matters and the submission is rejected.
His Honour had the benefit of the written submissions made by the lawyer then appearing for the Appellant. Those submissions cover paragraphs 14 to 22. No oral submissions were made in relation to the Appellant’s subjective circumstances. In the course of his Honour’s sentencing remarks from page 15 of the transcript, he considers each and every point made in the written submission going to the Appellant’s subjective matters and considered them. For example, when considering the submission that the Appellant’s mental health combined with the financial pressures he was under at the time of the offending had the effect of reducing his moral culpability, his Honour accepted that at the time the Appellant was suffering from mental health issues but not such that it operated to reduce his moral culpability.
The written submissions on the appeal assert that the Magistrate did not refer to the pre-sentence report other than to reject the submission that the author of the report did not recommend imprisonment. His Honour referred to the contents of the pre-sentence report in relation to the Appellant’s mental health, his diagnosis of ADHD and depression including his contact with health services in June and December 2021 and August 2022 in the context of situational stressor, relationship concerns and court matters. His Honour noted that the Appellant had, since that time, engaged with a general practitioner and obtained a mental health plan.
His Honour clearly accepted the facts asserted in the report and in the submissions but declined to find that the combination of mental health and financial pressures operated to reduce the Appellant’s moral culpability in a way which makes him an inappropriate vehicle for general deterrence.
In the pre-sentence report, there is mention of the Appellant attempting suicide in 2001. That date was incorrect. The Appellant attempted suicide in June 2021. At no point in the hearing before his Honour was the information in the pre-sentence report sought to be corrected.
Contrary to the submission that his Honour did not “deal with” the information in the pre-sentence report that the Appellant had accepted responsibility for his actions and acknowledged the seriousness of those actions, it is clear that his Honour accepted the assertion but as to how that acceptance and acknowledgement operated on the sentencing process, observed that, given the evidence, it would be “hard” for the Appellant not to do so. Clearly his Honour was evaluating the impact of his acceptance in the sentencing process.
The submissions contend that his Honour did not consider options other than full time imprisonment. That submission cannot be accepted. His Honour referred to the submission that the Appellant should be released on recognisance, a proposition he rejected because of the importance of general deterrence in cases such as the instant.
Further it was argued that his Honour did not ascribe any “weight” to the Appellant’s subjective case, and it was suggested that an inference was available that his Honour gave them no weight at all.
As to ascribing “weight” to each factor, this submission was not developed during argument on the appeal, and no authority was cited that a sentencer is obliged to assign particular weight to the matters to be taken into account if that is what is meant. To do so would fail to give effect to the process of “instinctive synthesis”. In Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37] the court quoted and adopted what was said by Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [74]-[75]: Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
Sentencing is, quintessentially, an exercise of discretion. Challenges to the weight given to one or more aspects of the exercise of the discretion face the burden of proving error of the kinds articulated in House. Nothing advanced by the Appellant in this challenge demonstrates error.

Next it was contended that his Honour failed to give any consideration to the effect that a sentence of imprisonment would have on the Appellant’s 10-year-old son.
The written submissions for the Appellant before the Magistrate contended: 20. By s16A(2)(p) of the Crimes Act 1919 (Cth), the Court must take into account, so far as it is relevant and known, “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. In Totaan v The Queen [2022] NSWCCA 75; (2022) 108 NSWLR 17, a bench of five judges held at [77]: In my view, decisions such as Sinclair and Hinton, holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfy the epithet “exceptional”, are “plainly wrong” and should not be followed.
The submissions made to the Magistrate continue and observe that in Totaan, Bell CJ disavowed that exceptional circumstances need to exist before the hardship to family members of dependents can be taken into account.
The written submission continued: 22. The offender has a 10-year-old son. His co-offender is the child’s mother, and she is yet to be dealt with. A sentence of full-time imprisonment imposed on this offender carries the real prospect that the child is left without either parent at home. The Court does not need to find that consequence exceptional before it may weigh it. It is a matter the court is bound to take.
No oral submissions directed to this issue were made to his Honour at the sentencing hearing.
His Honour, in the context of considering the Appellant’s submission on the subjective matters to be taken into account on sentence said: The submission then turns to the impact of a sentence on his family. I accept the submission that clearly is a relevant consideration and note that he has a 10-year-old son. The submission made at paragraph 22 is that the co-offender is the child’s mother and she is yet to be dealt with. Submissions say a sentence of full time imprisonment imposed on this offender carries the real prospect that the child is left without either parent at home. The Court does not need to find that consequence exceptional before it may weigh it. It’s a matter the court is bound to take into account. Certainly if the defendant’s child was going to be left without a parent that would obviously be something I would need to take into account. The defendant’s partner has not yet been sentenced though, and it would be entirely speculative to wonder what sentence she may receive. This submission is open to her to make.
On appeal, it was submitted that no speculation as to sentence was required because as, so it was asserted, his Honour’s starting point was a sentence of full-time imprisonment, he would understand that so too would the Appellant’s wife be sentenced to full time imprisonment, thus leaving the child without a parent at home.
His Honour was entirely correct to say that the co-offender’s fate was unknown. Although some of the charges for which the Appellant was to be sentenced were committed in concert with the Appellant’s wife, there was no evidence as to her role in the commission of the offences nor any evidence at all of the subjective matters that might be taken into account in her sentencing. Nor was there evidence before his Honour of other charges that the Appellant’s wife was facing.
It is further to be observed that a Magistrate sentencing the co-offender is not bound by the findings made by his Honour in sentencing the Appellant.
Next, it was argued that his Honour erred in failing to bring a halt to the sentencing proceedings and call up and determine the sentence for the Appellant’s wife, his co-offender, because without doing so, he could not consider the “probable effect” of sentencing the Appellant to imprisonment.
It was contended that to fail to do so deprived the Appellant of the argument, presently available to his wife, that to imprison him would leave the child without a parent.
While it was agreed that his Honour was not asked to stop the proceedings and call the co-offender for sentence, it was nevertheless submitted that the obligation in s 16A(2)(p) required that to happen because otherwise he could not assess the probable effect on the child.
Missing from these submissions are the words engaged by the Court in Totaan and replicated in the Appellant’s written submissions before the Magistrate: “so far as it is relevant and known”.
These words were used in Totaan at [83] where the Bell CJ said in the course of dismissing the notion that the family circumstances of an offender must be “exceptional” before they may be considered in s 16A(2): Not only is the requirement of “exceptional circumstances” not supported by any aspect of the text of s 16A(2)(p) but nothing in s 16A(2) as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2). Indeed, the Explanatory Memorandum specifies (at 7) that “[t]he matters to be taken into account [pursuant to s 16A(2)] are not set out in a hierarchy of importance or significance”. To the contrary, so long as “relevant and known to the court”, the Court is obliged (“must”) to take an enumerated matter into account: see also Hili at [49]. In particular, contrary to the position at common law, as usefully explained by the Victorian Court of Appeal in Markovic noted at [47] above, “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants” referred to in s 16A(2)(p) is not described as a residual discretionary matter, akin to a “last gasp” appeal to the mercy of the sentencing court. (emphasis added)
The argument that the obligation imposed by s 16A(2)(p) required the halting of the sentence process and bringing the co-offender to sentence especially when it was not sought, only needs to be articulated to be dismissed as farfetched. Nothing in the section persuades that the obligation imposed by the words “must take into account”, requires a sentencing judge, unbidden, to embark on what is, in effect, a process of discovery into the circumstances of the offender’s family.
Finally, and thirdly, the Appellant contended that his Honour failed to take into account the effect on the child, whether or not his mother was imprisoned, of having a parent in prison.
Neither written nor oral submissions were addressed to this point before his Honour. It was argued that nevertheless, his Honour ought to have given this consideration because the deleterious effect on a child having a parent in prison was “well-known”. There can be no doubt that there is considerable evidence in academic writings and in the Bugmy Bar Book which speak of the effect on a child of having an imprisoned parent.
However, to argue that in sentencing reasons, given ex tempore, in circumstances where no submission to the above effect was made, is to counsel perfection and overstates the obligation to take into account the “probable effect” on the child. In any event having not considered it, does not speak of error such that it undermines his Honour’s sentence.
No error has been demonstrated.

The ground asserts that the sentence is manifestly excessive.
As I have indicated, his Honour imposed individual sentences on the Appellant giving rise to an effective total sentence of twelve months imprisonment with a non-parole period of six months expiring on 15 January 2027.
The Appellant submitted that having regard to the totality of the circumstances, a sentence of imprisonment was “entirely outside the appropriate range”.
In support of that position, the Appellant, while conceding that the offending was objectively serious and involved the use of false names and was a fraud on the social security system, argued that the sums involved were “low”, the frauds were committed over three “short” periods being 7 months, 15 days and 3 days. The Appellant called in aid the fact (not established in the evidence before the Magistrate) that the Appellant had attempted to take his life shortly before the offending and offered the conclusion that the attempt “obviously reflected disordered thinking”.
While the question of whether evidence of the suicide attempt, and of other matters should be admitted on the appeal has yet to be determined, there is no suggestion in any of the evidence sought to be tendered that supports the unqualified opinion about the impact on the Appellant’s thinking at the time of the suicide attempt and to the offending and to that extent, this part of the submission is rejected.
The ground is a challenge to the exercise of sentencing discretion and again, the Appellant must demonstrate error of the kind articulated in House. No error of fact or law is raised, nor is there an assertion that his Honour failed to take into account a material consideration or gave undue weight to any circumstance or matter in arriving at the sentence imposed. Rather, the assertion must be that the sentence is “unreasonable or plainly unjust”.
As expressed in Tracey v The Queen [2020] ACTCA 51at [37]: …the Appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons…
The court continued and said: To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentence customarily observed with respect to the offence, the relative objective seriousness of the particular offence and the personal circumstances of the offender.
The maximum penalty for each of these offences is 10 years imprisonment. The matters were tried summarily and in the Magistrates Court a sentence of no more than 2 years may be imposed. Nevertheless, it is the maximum sentence provided by the statute that is to be considered.
It is unnecessary to set out in detail his Honour’s remarks on sentence because, in relation to this ground, no error of the first three kinds referred to in House were raised. His Honour’s sentencing remarks express the objective seriousness of the offending and the extent of the fraud, the use of false names, the period over which the offending took place and the sum of money involved in the fraudulent conduct. His Honour also considered the arguments advanced that would reduce the objective gravity of the offending. His Honour accepted that the sums involved were modest and the offences committed under financial pressure. His Honour took into account the subjective matters which it was submitted to him went to the Appellant’s favour in the sentencing process.
When coming to sentence, his Honour indicated that he had regard to a range of “broadly comparable” decisions, to which he referred to the objective seriousness of the offences which included “the repeated, deliberate and sustained offending” and the purposes of sentencing and considered the only appropriate sentencing alternative was of full-time imprisonment.
Having regard to the matters to which his Honour referred, the sentences and the overall total sentence are neither manifestly excessive nor unjust and this ground of appeal has not established error. Ground 4
This ground asserts that there was a miscarriage of justice because of the existence of compelling subjective material which was not before the Magistrate.
In proof of this ground, the Appellant seeks to adduce further evidence on the appeal.
Section 214(3) of the Magistrates Court Act 1930 (ACT) deals with the admission of evidence on appeal from a Magistrate and provides: (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— ... (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
This section was considered in Greenwood v Barlee [2018] ACTSC 46 at [41] and in Agarwal v Coutts (No 2) [2024] ACTSC 92 at [90] where Baker J set out the three circumstances contemplated by the section and in which new evidence may be admitted on an appeal from the Magistrate’s court: There are three different bases upon which new evidence may be admitted on an appeal from the Magistrates Court: (a) The parties consent to the receipt of evidence: s 214(3)(b); (b) There is a reasonable explanation for the previous failure to adduce the evidence, the evidence is likely to be credible, the evidence would have been admissible in the proceedings below, and the Court is not satisfied that the evidence would not afford a ground for allowing the appeal: s 214(4); or (c) The Court considers it “necessary or expedient” in “the interests of justice” to admit the evidence of a witness: s 214(3)(a).
Here there is no consent to the admission of the proposed evidence. Further evidence
The Appellant seeks to introduce the records of his hospital admission on 8 June 2021 and an affidavit of the Appellant. The documents were provisionally admitted subject to the satisfaction of the provisions of s 214 of the Magistrates Court Act 1930 (ACT).
The Appellant’s affidavit addresses his mental health at and before the date of the offending, circumstances from his earlier life, the loss of his mother and partner, difficulties in his marriage around pregnancy and birth, physical difficulties experienced by the co-offender and the resulting need for the Appellant to take over some of the care of their child and that the co-offender has been granted a disability pension from June 2026 and he is her designated carer. Annexed to the affidavit is a document from Centrelink supporting the disability pension paid to the co-offender and another document certifying the co-offender’s permanent disability dated December 2025.
All of this evidence existed at the date of the hearing of the Magistrate. No explanation was advanced for the failure to adduce it in the hearing.

The Magistrate had evidence before him that the Appellant had attempted suicide, albeit erroneously said to be in 2001. However, that was not the only evidence going to the Appellant’s mental state as his Honour’s reasons demonstrate when he quoted from the pre-sentence report. Indeed, his Honour accepted that the Appellant suffered from mental health conditions but did not accept that it operated to reduce his moral culpability.
Significant reliance was placed on the receipt of the hospital discharge summary document. The Appellant submitted that had his Honour known that the Appellant had attempted suicide in June 2021 given the commencement of the offending in August 2021, the Magistrate would have concluded that at the time of the offending, the Appellant’s mental state was altered.
The hospital discharge summary does no more than record the fact of the Appellant’s attempted overdose using a benzodiazepine prescribed for his wife. It notes he “just wanted everything to stop”.
The document records the Appellant’s account of his past medical history to include a diagnosis of ADHD for which he is prescribed dexamphetamine and anxiety/depression untreated. No formal diagnosis is recorded.
While it might be presumed that someone who attempted to take his life might, but not necessarily did, have an altered mental state at the time, the bare tender of the hospital discharge summary could not assist his Honour to conclude, as suggested by the Appellant, that the Appellant’s mental state was altered when he committed the offences and thus his moral culpability should be considered to be reduced.
In his affidavit, the Appellant asserts that he had been suffering from “severe depression” and “major depression” for the six months leading up to his attempted suicide and asserts that after his release from hospital “my depression continued to affect my rationality, insight and judgment throughout 2021”.
No medical evidence or indeed any other evidence was advanced in support of the Appellant’s assertion of having a diagnosed mental illness. The suggestion contained in the affidavit that the Appellant had been diagnosed with these conditions is not supported either by the discharge summary or the pre-sentence report which noted that the author made enquiries of the hospital and was told that no diagnosis had been made. These two matters go both to the admissibility of the assertion and the credibility of it.

The affidavit refers to the loss of the Appellant’s mother when he was 13 and its effect on him. This is a matter referred to in the pre-sentence report.
The Appellant further speaks of being the driver of a car involved in an accident in which his partner was killed. The Appellant said he was 21 at the time and he says he sought and obtained counselling because of the effect of the accident on him.
The Appellant deposes to difficulties in his marriage concerning his wife conceiving a child.
These apparently unrelated but sad events are proffered without explanation as to how they would, whether considered individually or as a whole, provide a ground for allowing the appeal.
Finally, the Appellant refers to his wife’s condition described in the attached medical report as “left talonavicular foot arthritis, causing persistent pain, instability, stiffness” which it is said to impair the function and walking. He says that as a result he is responsible for some tasks involved in caring for their child and in assisting his wife. His wife’s condition was well known to the Appellant at the time of sentence, and she had been certified to have a permanent disability in December 2025.
Returning to the terms of the statute, no explanation, whether reasonable or not, was advanced as to why all of the evidence sought to now be introduced was not placed before the Magistrate. All of it was available at the time.
As to whether the evidence is likely to be credible, assertions by the Appellant as to his mental state at the time of the offending is unsupported by medical evidence and that it was not raised with the maker of the pre-sentence report gives rise to a doubt as to its credibility. Further as I have noted, there is an inconsistency between the Appellant’s assertion of having a mental illness and the hospital informing the author of the report that no diagnosis has been made.
In relation to the further matters deposed to, while they may be credible, their admissibility is questionable given that there is no evidence proffered to link those past events to the causes of the Appellant’s offending.
None of the evidence sought to be adduced would afford a ground for allowing the appeal, nor is it expedient or in the interests of justice that the Appellant’s evidence be admitted. The application to adduce the further evidence is refused.
For the reasons given, the appeal will be dismissed