The offender, Julia Demir, is charged with 2 counts of Obtain Property by Deception contrary to section 192E(1)(a) of the Crimes Act 1900 (NSW). The first count specifies that the offender obtained $27,809.60, the property of CGU Workers Compensation (NSW) Limited. The second count specifies that the offender obtained $11,186.38, the property of Allianz Australia Workers' Compensation (NSW) Limited. The matters were first before the court on 22 February 2017. Pleas of not guilty were entered. The case was set down for a 3 day special fixture defended hearing commencing 28 June 2017. On the day of hearing, pleas of guilty were entered to both counts.
A discount of 10% is allowed for the utilitarian value of the plea, consistent with the authority of R v Thompson; R v Houlton [2000] NSWCCA 309.
[2]
Facts
A Statement of Facts was tendered on sentence. They indicate that the offender lodged two workers compensation claims in 2012 for the same injury, claiming that she injured her back on 13 January 2012 when working for Cityview NSW Pty Ltd ("Cityview").
Cityview took out two workers compensation insurance policies, one with CGU Workers Compensation NSW Limited ("CGU") and the other with Allianz Australia Workers Compensation Limited ("Allianz").
The offender first lodged a claim for a workplace injury with CGU in January 2012. The claim was later transferred to Allianz and another claim was lodged with Allianz in June 2012.
Workers compensation benefits were paid totalling $70,475.21. The offender was never employed with Cityview. The workplace injury did not occur.
A workers compensation policy started with Allianz on 1 December 2011 in the name of Cityview. The contact person on the 'New Business Notification' was Richard Cherry, with an address at Gordon and a mobile phone number supplied. Cover was for 12 months. No premium was ever paid.
Allianz took action against Cityview in relation the unpaid premium, and Cityview was placed under external administration on 4 July 2012.
A workers compensation policy for Cityview with CGU started on 7 December 2011. The contact person was also Richard Cherry.
CGU received a claim on 16 January 2012 for an alleged injury claimed to have been suffered by the offender on 13 January 2012. The claim form was purportedly signed by the offender and Mr Cherry. The form contained information about the offender's identity, including previous names used, email and residential address, date of birth, Medicare and mobile numbers.
The document falsely indicated: that the offender commenced full-time employment with Cityview on 2 November 2011; with pre-tax weekly earnings of $2,320; that a lower back injury was sustained from bending over to lift a computer tower when moving around office furniture at 72 Bathurst Street, Liverpool; and that the injury was reported to Richard Cherry.
Medical certificates were provided. CGU accepted liability and forwarded four cheques totalling $4,332 to the Gordon address in January and February 2012. Further medical certificates were received, apparently sent from the offender at Parramatta.
A facsimile was received at CGU purportedly from Mr Cherry asking CGU to pay the offender directly. Weekly benefits totalling $27,809.60 were paid by EFT into the offender's account from February to June 2012. That is the amount the subject of the first count. Withholding tax payments of $9,734.40 and $9,235.69 in medical and claim costs were paid, bringing the total on that claim to $51,111.69.
CGU became aware that Cityview had a policy with Allianz and declined liability on 8 June 2012. The claim was transferred to Allianz. Allianz accepted the claim and reimbursed CGU $42,322.93.
On 12 June 2012, a claim form in the offender's name was received by Allianz. Allianz accepted liability on 18 June 2012. Medical certificates were received by Allianz via the offender's email address. They were variously issued by Drs Ng, Singanamata and Pan - all from the same practice at Parramatta.
A person purporting to be Mr Nikolic sent a facsimile request to Allianz to pay the offender directly. RMS records show that Mr Nikolic has the same address at Gordon as Mr Cherry. A 'Direct Credit Authorisation' dated 21 June 2012 was received by Allianz. The account details were the same as that for the CGU direct deposits.
$11,186.38 was paid into the offender's account via EFT between 4 July and 20 August 2012. This is the amount of the second count.
A total of $48,017.14 was paid in gross weekly benefits and $22,458.07 in medical and claim costs. The total cost of the claim was $70,475.21, including payments made to CGU by Allianz.
The offender made a statement to an Allianz investigator on 29 June 2012. She asserted that she had met Mr Cherry at a Parramatta restaurant where she previously worked and that he offered her a job with Cityview, which she accepted. She claimed her role was part administration and also involved a lot of driving to various sites to check on tradesmen and ferry around supplies. She said she was paid $1,650 net weekly in cash by Mr Cherry, who placed the money in an envelope with a pay slip. She said a tax declaration had been signed by her upon commencing employment, but she did not have a copy of it.
The offender said that on the day of her workplace accident, she went to the Bathurst Street address to pick up some silicone cylinders for a job Cityview was doing in North Parramatta. She repeated the earlier claim that her back was injured picking up a computer tower.
Investigations revealed that the relevant suite in the Bathurst Street Liverpool address was vacant on the date of the offender's alleged injury. No lease had been entered into with Cityview by the managing agent of the building. Mr Nikolic and Mr Cherry refused to be interviewed. Allianz declined liability on 17 August 2012 and stopped payments.
Richard Cherry took part in a recorded interview with the State Insurance Regulatory Authority investigators on 26 February 2013. He stated that he agreed to become a director of Cityview at the request of Mr Nikolic. He did not know Julia Demir or a person using her former name. He knew nothing about any alleged workplace injury sustained by the offender employed by Cityview. He did not sign the claim form submitted to CGU, nor did he speak with any claims officer. He did not sign the insurance proposal with Allianz.
[3]
One offence involving two victims - or two offences
It was submitted by the prosecution and echoed by the defence that for the purposes of sentence, "the court should consider the charges as constituting a single course of conduct." The basis for that submission is that Cityview had two policies of workers compensation insurance - the first in time with Allianz, followed by CGU. The submission is that CGU having become aware that Allianz was first in risk, 'transferred' the offender's claim to Allianz. The offender played no role in that decision.
I am unable to agree with the submission that there is a single course of conduct. Although the offender played no role in the decision of one insurer to transfer the initial claim to the first in time insurer, it did not amount to continuity of that claim. There was a clear period of time in which liability had been declined by the first insurer, and not accepted by the second.
CGU declined liability on 8 June 2012. It had paid out $51,111.69 due to the fraud committed upon it. It 'transferred' the claim to Allianz, however Allianz had not accepted liability. Allianz did not accept liability until 6 days after the offender engaged in criminal conduct against Allianz by submitting a false claim. The need to commit the subsequent fraud on Allianz was undoubtedly borne from a need to cover up the fraud upon CGU.
If the offender had not submitted a subsequent false claim form, this time on Allianz, payments for the false injury would not have continued. Allianz only accepted liability after the offender submitted a false claim. It was not a continuing fraud upon CGU. The fraud upon Allianz commenced and continued due to the ongoing falsity of information provided by the offender, whether directly, or via Mr Nikolic or Mr Cherry, or by convincing doctors on multiple occasions of her contrived condition.
Simply because payments were to continue from the same bogus injury does not mean that the offences are one and the same, or that it is the same criminality involved. It is very similar criminal conduct, but on two different victim companies. They are separate and distinct offences, linked by the commonality of the original falsely claimed injury and fraud upon CGU, and the need to perpetuate the status quo, or risk whatever consequences might flow by not committing the second offence.
The fraud committed upon Allianz is marginally more serious than the first - despite the fact that the amount specified in count 2 is less than the amount specified in count 1. The reason for this is criminality involved. The amounts specified in the court attendance notices are for the amount obtained personally by the offender and do not take into account the aggravating factors of further loss caused by the offender as set out in the agreed facts, by way of medical expenses and withholding tax, and the reimbursement amount paid from Allianz to CGU.
The parties ask me to proceed on the basis that the additional losses incurred by the respective insurance companies be taken into account as an aggravating factor. I am prepared to do so, noting that circumstances of aggravation may be considered by the court, but not if they would give rise to a more serious offence than the one before the court; see R v de Simoni (1981) 147 CLR 383. The aggravating factors do not give rise to a more serious offence. The offender could have been charged under section.192E(1)(b), which carries the same penalty.
Like the first count, the second count also involved lodging a false claim, attending doctors and persuading doctors that an injury was legitimate resulting in the issue of medical certificates so as to receive further payments. It involved conduct that resulted in a letter being sent to Allianz for direct payment to the offender, as well as a Direct Entry Authorisation being completed for payments to be credited to a particular bank account. Unlike the first count, it involved taking part in the making of a statement to an Allianz investigator which perpetuated the situation through the falsity of information provided.
In Pearce v The Queen [1998] HCA 57 at [40], McHugh, Hayne and Callinan JJ. said:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap".
Whilst most of the elements in each offence are common, there are some elements that set the offences apart. There will be a degree of concurrency in sentencing for the two offences, though they will not be wholly concurrent. In R v Merrin [2007] NSWCCA 255, Howie J. (Gyles JA, Fullerton J. agreeing) said at [36]:
"This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court."
[4]
Maximum Penalty
On indictment, the maximum penalty is 10 years imprisonment for each offence. In the Local Court, the jurisdictional limit is 2 years for each offence. The principles enunciated in R v Doan (2000) 50 NSWLR 115 per Grove J. at [35] apply, namely that the jurisdictional limit of the Local Court is not reserved for worst case scenarios.
The Local Court can impose a sentence of up to 5 years imprisonment for multiple offending: see section 53B and 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Since there are only two offences here with a limit of 2 years imprisonment on each, the upper limit could not be reached. Nevertheless, it demonstrates that a total sentence exceeding 2 years is an available sentencing option.
[5]
Criminal Record
The offender has no criminal record.
[6]
Prosecution Submissions
The prosecutor notes that the maximum penalty is the starting point in assessing the gravity of the offence, quoting from R v H (1980) 3 A Crim R 53 at 65:
"The maximum penalty is a reflection of the seriousness with which the public through the legislature considers the type of criminal conduct with which it is concerned."
Aggravating factors per section 21A(2)(g),(m) and (n) of the Criminal Procedure Act are relied upon. Specifically, 21(A)(2)(g) is that the loss was substantial, i.e. $70,475.21. However, there are two offences and that sum reflects the total loss caused by both frauds. The first offence involved a total loss of $51,111.69 of which the offender obtained $27,809.60. At the time the offender submitted the false claim to Allianz on 12 June 2012, Allianz had not accepted liability. The offence upon CGU was complete. Upon acceptance of liability on 18 June 2012, Allianz reimbursed CGU for $42,322.93. This did not represent the full amount that CGU had been defrauded - there being a shortfall of $8,788.76.
The overall net loss from both frauds is $70,475.21. The loss to Allianz is $60,686.45 - noting that the amount obtained by the offender was $11,186.38. I take into account that whilst the loss to CGU was $51,111.69 and the loss to Allianz was $60,686.45, the total net loss was less than the sum of the individual losses due to the fact that the loss to Allianz included partial reimbursement to CGU. It is for this reason that there will be partial accumulation, or perhaps viewed as partial concurrence in the overall sentence to be imposed.
Section 21A(2)(m) relates to the offence involved a series of criminal acts. The meaning of this was explained in R v Tadrosse (2005) 65 NSWLR 740 at [29]:
"Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant."
That description is apposite to the present charges, each containing a number of criminal acts.
In relation to 21A(2)(n), each offence was part of a planned or organised activity. This included the lodgement of a claim with CGU with false information of employment that did not exist, for wages which were not earned, involving an injury that did not occur, having obtained at that time two medical certificates after duping a doctor. There were further medical certificates, and arrangement for payment, and coordination of, or arrangement for, payment to the offender directly.
In relation to the Allianz fraud, there was the lodgement of a claim form, obtaining multiple false medical certificates by duping doctors, coordination of, or arrangement for, payment to the offender directly, and participation in an interview with Allianz investigators where false and calculated information was given to perpetuate that fraud.
The offences were committed for financial gain, however this is an ingredient of these types of fraud offences, and not a separate aggravating factor.
It was submitted that the workers compensation scheme consists of beneficial legislation designed to protect and compensate injured workers:
"Fraud of any type committed directly or indirectly upon the workers compensation scheme places a heavy burden upon those funds collected from employers through workers compensation premiums. Funds used to compensate injured workers are not infinite."
I agree completely.
The prosecutor cited the Chief Industrial Magistrate in WorkCover Authority of New South Wales (Inspector Fester) v Lantry (unreported, Chief Industrial Magistrates Court, , 9. December 1994) as to the purposes of the Workers Compensation Act 1987 (NSW):
"The main purpose or object of the legislation is 'to provide an efficient, equitable and affordable workers' compensation system, to promote the rehabilitation of injured workers and to reinforce measure to improve safety and minimise accidents in the workplace." (Hansard, 28 May 1987, Second reading speech Legislative Council). Of particular concern to the government of the day was the growth of high workers compensation costs.
Workers compensation legislation is social legislation. The assumption behind the legislation is that industrial society creates inevitable hazards and therefore society ought to bear the cost by spreading the loss. Therefore, the Act creates a compulsory insurance scheme for employers to contribute to the scheme to minimise the cost to the community."
The frauds committed by the offender are said to be analogous to fraud committed upon the public purse. In Regina v Van Tung Luu (unreported, NSW Court of Criminal Appeal , 7 December 19.84) Street CJ stated (at 2):
"The courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardship to persons whose need for benefits is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hands of the courts."
The prosecutor refers this court to The Queen v Allred [2015] ACTSC 327 which involved a fraud on the Commonwealth workers compensation scheme. At [36], Refshauge ACJ referred to R v Purdon (unreported, NSW Court of Criminal Appeal, 27 March 1997) where the NSW Court of Criminal Appeal reaffirmed the statement of principle that:
"a custodial sentence is to be imposed for social security fraud except in very special circumstances……the rationale stated for the rule was that the offence is easy to commit and difficult to detect, it is widespread and the introduction of more checks upon applicants would cause delays in payment and therefore hardship to those whose need is urgent…..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."
At [37], Refshauge ACJ recognised that such crimes are not victimless because they have consequences for the public. The system relies heavily on the honesty required of recipients to comply with their reasonable obligations.
It is submitted by the prosecutor that the offender's conduct threatens the basis of the system which is designed to provide compensation, often urgently, to injured workers in need of income, medical benefits and lump sum compensation. The offence involved ongoing and substantial deception. The prosecutor correctly notes that the current offences can be contrasted with cases involving legitimate injury but a failure to disclose other income. The claims in the current matters were entirely false - no injury, no employer. The insurance premium was not paid to either insurer.
I agree with the submission that the offender involved herself in a sustained course of fraudulent behaviour. The deception was ongoing. Further to those submissions, I note that the deception escalated when necessary with Allianz, to keep from discovery the fraud upon CGU and perpetuate the fraud upon Allianz.
[7]
Objective Seriousness of Offences
For reasons set out above, I find that the first offence (CGU) falls perhaps below mid-level objective seriousness, whereas the second offence (Allianz) is just below mid-level.
[8]
Defence Submissions
The defence focussed primarily on parity, indicating from the outset that two other offenders somehow related in the type of conduct had received suspended sentences, effectively saying that Ms Demir was ready to sign her papers. It was submitted that the conduct was not totally analogous to social security fraud. The offender was recruited to take part in the fraud.
It was said that Ms Demir has a good work ethic, as set out in the references and her resume. She previously had a back injury. She has 2 adult children. Ms Demir has the capacity to repay. She consents to paying the prosecutors costs, as agreed or assessed.
[9]
Observations on Submissions
In R v Blaire (unreported, NSW Court of Criminal Appeal, 20 November 1987), and in R v Winchester (1992) 58 A Crim R 345, it was noted that:
"where an offender in social security matters makes immediate admissions of guilt, but is permitted by the Department to continue for a substantial period to make regular repayments of the amount involved in the offence before any action is taken to prosecute the offence, what may have been required by way of punishment if the prosecution had been instituted speedily is no longer necessarily required when the prosecution is, without any valid explanation, brought on tardily…. Very special circumstances, or qualification to the general rule that general deterrence requires the imposition of a custodial sentence in these cases, has been applied not infrequently in the District Court."
Whilst it is said that Ms Demir has the capacity to repay, it seems that she has made no attempt to do so. She made no immediate admissions of guilt - quite to the contrary.
[10]
Appropriate Sentence
I have considered the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act. There is a real need for a strong measure of general and personal deterrence so as to deter others from embarking upon such conduct, and deter the offender from doing so again.
I have considered section 5 of the same Act, and am of the view that no other sentence other than one of imprisonment of some kind is appropriate. I note that so much is conceded by Mr Ainsworth who appears for the offender, wanting disposition by a suspended sentence for parity reasons.
[11]
Aggregate Sentence
I will sentence the offender by way of an aggregate sentence pursuant to section 53A of the Crimes Act. As previously indicated, there will be a degree of accumulation (see Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 per McHugh, Hayne & Callinan JJ at [45]-[48]; Cahyadi v R [2007] NSWCCA 1 per Howie J. at [27]; R v Merrin [2007] NSWCCA 255 at [35] - [37] per Howie J.; and Vaovasa v R [2007] NSWCCA 253 at [16] per Howie J.
[12]
Indicative Sentences - section 53A(2)(b) of the Crimes (Sentencing Procedure) Act
I have already indicated to the offender, and provide in writing by virtue of these remarks on sentence which will be attached to the court papers, the fact that an aggregate sentence is being imposed pursuant to section 53A(2)(a) of the Crimes (Sentencing Procedure) Act. In all of the circumstances, given the facts and the various aggravating and mitigating factors as I have found them to be I am of the opinion that the criminality for each matter is deserving of the sentence indicated below, having applied a discount for the utilitarian value of the guilty plea in each case, as follows [note: none of the offences are subject to a standard non-parole period, and accordingly, non-parole periods are not specified: s.44(2C) Crimes (Sentencing Procedure) Act] :
Offence Indicative Sentence
Dishonestly Obtain Property by Deception - seq.1 16 months*
Dishonestly Obtain Property by Deception - seq.2 18 months*
[13]
Aggregate Sentence and Special Circumstances
I have had regard to the various propositions regarding aggregate sentencing emerging from legislation and cases are set out in JM v R [2014] NSWCCA 297 at [39] per RA Hulme J., McIntosh v R [2015] NSWCCA 184 and PG v R [2017] NSWCCA 179 at [70] - [94].
I make a finding of special circumstances per section 44(2B) of the Crimes (Sentencing Procedure) Act, noting that this would be the offender's first time in custody. There are no other special circumstances.
Accordingly, I am firmly of the view that the appropriate sentence for the offending conduct is a term of imprisonment of 20 months with a non-parole period of 12 months. To impose a sentence not involving full time custody would fail to serve the purposes of sentencing. This is an offence of greed.
[14]
Parity Considerations
Both the prosecutor and defence submit that I am bound by the principles of parity and must impose a sentence accordingly - that sentence being a suspended sentence. To do otherwise may lead to a justifiable sense of grievance. I have had regard to Green v The Queen; Quinn v The Queen [2011] HCA 49, Jimmy v R [2010] NSWCCA 60 and Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169. These decisions collectively refer to a number of other authorities regarding parity.
I was referred to the sentence of two offenders said to be related in some way to this investigation: Syed Parvez Qasim ("Qasim"), and Anthony Judge ("Judge").
I have received the statement of facts for both Qasim and Judge together with a copy of their respective criminal antecedents, and a table prepared by the prosecutor comparing some of the factors in each of those matters.
Qasim was sentenced on 21 June 2017 to 10 months imprisonment suspended per section 12 of the Crimes (Sentencing Procedure) Act. He was charged per section 178BA(1) of the Crimes Act which carried 5 years imprisonment as a maximum penalty. He pleaded guilty at an early stage. He lodged a false workers compensation claim in 2007. The total of that fraud was $24,258.46, of which he received $4,500. He was interviewed by the State Insurance Regulatory Authority 7 years later in 2014 and made admissions of guilt. He was never employed as claimed, and did not injure himself. A policy was set up in the name of a company. The premium was not paid. The offender attended upon a doctor and received 18 medical certificates between January and July 2007. An orthopaedic surgeon provided a report supporting the claim. The offender had a previous injury of a bulging disc. No payments were made directly to the offender. The offender had previous convictions for driving. The section under which he was charged is now repealed. There is some similarity in the offending conduct. There are no names in the facts of organisers or facilitators referable to Ms Demir's case. The offender self-reported to the insurer that his injury had resolved and he had resumed work.
Judge was sentenced on 19 April 2017 before a different Magistrate to the one who sentenced Qasim. He was sentenced to 15 months imprisonment suspended per section 12 of the Crimes (Sentencing Procedure) Act. He pleaded guilty at an early stage. He lodged a false workers compensation claim in late 2011. The total of the fraud was $90,764.81, from which he received $26,552.10. A workers compensation claim was arranged for a company, with the contact name Richard Cherry - a person who also appears in the factual matrix of the Demir matter. The premium was never paid. Judge was never employed by the company, and did not injure himself. A claim was lodged in the offender's name, with cheques sent to the company at the Gordon address that is the same as for Demir. Subsequently, payments were made directly into an account in Judge's name. Judge made a false statement to the insurance investigator 5 months after the alleged injury. In 2014, Judge gave a statement to the State Insurance Regulatory Authority investigators making admissions. The following day he took part in a recorded interview adopting those admissions. Richard Cherry also took part in an interview in 2013 and made admissions. Judge had a criminal record for assault occasioning actual bodily harm (2008), remain in a restricted area of a station, and offensive language (2009), custody of an offensive implement and intimidation (2011), intimidation (2012) and common assault (2013). There are no matters on his record for dishonesty offences. The injury date was 2 days prior to being placed on a good behaviour bond. Some of his criminal acts in perpetuating the fraud occurred during the time of that bond.
I ordered a copy of the transcript of the sentencing remarks for both Qasim and Judge.to gain a greater appreciation of the reasons given to support the sentences and to determine whether or not parity applied I do not sit in an appellate position of my fellow Magistrates. Nor do I criticize any of the decisions that have been made. Magistrates are independent judicial officers.
I can well understand the sentencing decision in Qasim - charged with an offence that occurred so long ago, the offence carrying half of the maximum penalty of the charge faced by Judge and the charges faced by Demir. The amount of the fraud was significantly less. His record was minor with no matters of dishonesty upon it. The amount he received is noticeably less than the amount received by Ms Demir. He effectively caused the payments to stop. He was interviewed well after the event and made admissions, pleading guilty at an early opportunity.
In relation to Judge, the Magistrate noted the need for general and specific deterrence, noted the amount of the fraud, the early guilty plea, and that the offender was on a bond at the time, though with no similar types of matters on his record. Judge had participated in post-offence rehabilitation, getting his life back in order and being involved in a program to get help with drug issues. The drug addiction was a mitigating factor due to the age he commenced using them. He is an Aboriginal person with 'prospects' of rehabilitation, which I infer from the comments made to be positive prospects.
I am not satisfied that the matter of Qasim has any bearing on Ms Demir's matter. It can be distinguished for the reasons that I have given. Parity does not apply.
In Jimmy v R (supra) there is detailed analysis of a plethora of cases as to the extended application of parity for persons who are not strictly co-accused. Judge and Ms Demir are not co-accused. Both matters involve the apparent recruitment of offenders to make false workers compensation claims. Messrs. Cherry and Nikolic (also known as Ivanovic) have been identified as up-line organisers or facilitators common in both statements of facts.
In relation to the matter of Judge, there is strong similarity in the criminal conduct. Judge's record is not significant, though being on a bond for the majority of the time over which the fraud was conducted is an aggravating factor. Against that, he made full admissions ahead of the charging process and pleaded guilty at an early opportunity. His previous drug addiction was a mitigating factor, per R v Henry [1999] NSWCCA 111. He told investigators in interview that he felt really guilty about his conduct. This was recorded in the statement of facts. SIRA have not appealed against the sentence for Judge.
In the case of the offender Ms Demir, the amount of the fraud was less than that of Judge, though the amount she received was more. However, their conduct was quite similar. Ms Demir is to be sentenced for two offences, though her conduct in the commission of both offences is still similar to the conduct of Judge in committing a single offence, noting what I have already said regarding the distinction between the offenders conduct in the CGU offence compared to the Allianz offence. She was not on a bond and had no criminal convictions. She did not have a long standing drug addiction as a mitigating factor and there is no evidence of post-conduct rehabilitation. Ms Demir is gainfully employed.
The "relevant difference" referred to in Green (supra) at [28] between the matter of Judge and that of the offender Demir is firstly the acceptance of guilt, secondly the timing of the pleas of guilty, and thirdly the specific amounts received by this offender exceeding that received by Judge, albeit the total loss was more extensive in Judge's case.
In terms of acceptance of guilt, I note that Judge provided investigators with a statement on 19 June 2014, well ahead of the charging process, making detailed admissions of his wrong doing. In R v Thompson; R v Houlton [2000] NSWCCA 309 at [118], Spigelman CJ., said:
"The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition."
Judge's conduct and statements appear to have been consistent since December 2014 until his sentencing proceedings in April 2017.
Judge received the full discount, which I anticipate is 25%. Ms Demir's late plea was made on the first day of a 3 day special fixture defended hearing. The difference in the discount given for the utilitarian value of the plea is significant. The delay in her acceptance of guilt is in marked contrast with that of Judge.
It is not simply a matter of making a mathematical calculation to say for example, if Judge received a 15 months suspended sentence with a 25% discount, the starting point is 20 months, and therefore Ms Demir's starting point should be 20 months with a discount of 10% applied resulting in an 18 month suspended sentence.
Whilst on parity issues, an 18 month aggregate sentence for Ms Demir is appropriate, the disposition by way of suspended sentence is not. Referring again to Spigelman CJ's judgment in R v Thomson; R v Houlton (supra), at [160]:
"In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed."
I am still firmly of the view that the appropriate sentence, in the absence of parity considerations, should be one of full-time imprisonment. However, taking all matters into account, there is a significant difference between a sentence of full-time imprisonment and a suspended sentence. For reasons set out above, I am satisfied that it would not be appropriate to suspend the sentence for Ms Demir. As was said in R v Taylor [2000] NSWCCA 442, where general deterrence is the principal consideration, a suspended sentence "provides very little, if anything, by way of general deterrence."
I will defer passing sentence at this time and have the offender assessed for an Intensive Corrections Order. The offender should not take that as being an indication that should she be found unsuitable for an ICO, the sentence will be suspended.
[15]
ICO Assessment and Orders
The offender has been assessed as suitable for an Intensive Corrections Order. Julia Demir is sentenced to imprisonment for a period of 18 months from 27 October 2017 to 26 April 2019 to be served by way of Intensive Corrections Order. She is directed to report to Liverpool Community Corrections Office on Monday 30 October 2017.
I make an Order for the offender to pay the costs of the prosecution in the sum of $33,279.53. I note that the amount claimed does not cover all of the work done and excludes appearance by counsel for SIRA on two occasions since this estimate of costs was compiled. I find the amount claimed to be just and reasonable.
In relation to sequence 1, pursuant to section 43(1) of the Criminal Procedure Act, I order the defendant to pay restitution to the Workers Compensation Insurance Fund in the sum of $27,809.60.
In relation to sequence 2, pursuant to section 43(1) of the Criminal Procedure Act, I order the defendant to pay restitution to the Workers compensation Insurance Fund in the sum of $11,186.38.
In relation to sequence 2, pursuant to section 97(1) of the Victim Rights and Support Act 2013 (NSW), I order the defendant to pay restitution to the Workers Compensation Insurance Fund in the sum of $31,479.23.
I order the defendant to attend Liverpool Police Station today for the purpose of her fingerprints and photograph being taken for identification per section 134 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Magistrate Philip Stewart
Downing Centre Local Court
27 October 2017
Note: The NSW District Court allowed the severity appeal in this matter in part and issued an 18 month suspended sentence.
[16]
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Decision last updated: 22 October 2018