R v Zaky, Manerva

District Court of NSW|2014-09-24|Before: Ms J

Solicitors: Director of Public Prosecutions (Cth) (Crown) Proctor & Associates (Offender) File Number(s): 2013/00233304

SENTENCE

HIS HONOUR: Manerva Zaky appears for sentence in respect of two offences. The first is an offence contrary to s 29D of the Crimes Act 1914. The charge was that she, between about 2 August 1999 and about 23 May 2001 at Sydney, in the State of New South Wales, did defraud the Commonwealth, in that while her partner Ezzat Zaky, also known as Ezzat William, was the owner of the principal home, she obtained rent assistance for to which she was not entitled. The maximum penalty provided is one of ten years imprisonment and/or a fine of $110,000. The amount obtained was $4,561.66.
The second offence is contrary to s 134.2(1) of the Criminal Code 1995. That was that she, between about 24 May 2001 and about 14 October 2010 at Sydney, in the State of New South Wales, did by deception dishonestly obtain a financial advantage from another person, namely, the Commonwealth Services Delivery Agency, which is a Commonwealth entity. The amount obtained was $22,813.12.
The two offences represent a continuous period of offending which has been broken into two periods simply because of a change in the legislation when the offence, which had been provided by 29D of the Crimes Act, changed to being an offence under s 134.2(1) of the Criminal Code. In respect of the Criminal Code offence, the same period of ten years' imprisonment is provided and/or a fine of $66,000.

NATURE OF ALLEGED OFFENCES

The alleged offences arise out of the offender claiming and receiving rent assistance between about 2 August 1999 and about 14 October 2010, whilst she was residing in a family residence purchased and owned by her husband Ezzat Zaky, in the name "Ezzat William". As a result, the offender was paid $27,374.78 in rent assistance to which she was not entitled.

CLAIMS AND REVIEWS AND RELATIONSHIP WITH EZZAT ZAKY

THE 1988 FAMILY ALLOWANCE CLAIM 2. On 10 May 1988, the offender made a claim for family allowance in respect of her son, Shawn Zaky, born on 6 May 1988. The form was co-signed by "E Zaky", as the offender's partner.

THE 1991 FAMILY PAYMENTS CLAIM 3. On 3 June 1991, the offender lodged a claim for family payments in respect of her son, James Zaky, born on 27 May 1991. Under the section "About your partner: Your partner is your husband...or de facto", the offender named "Ezzat Zaky", born 19 May 1953. The question "Other names your partner has been known by" was left blank. 4. The offender was granted rent assistance by Centrelink from 22 October 1992.

THE 1995 DISABILITY SUPPORT PENSION CLAIM 5. On 2 December 1995, the offender signed a Disability Support Pension claim in which she stated her partner was "Ezzat Zaky", born 19 May 1953. The question "Other name/s your partner has been or is known by" was left blank. The offender listed her address as 6/331 Carlisle Avenue, Mount Druitt, 2770, and said that she paid rent of $175 per week to "John Legerwood R/S North Sydney." 6. On 5 December 1995, Ezzat Zaky and the offender co-signed an Asset Details form. In response to the question, "Do you or your partner have any assets which you have not advised us about in answer to other questions on forms completed by you?" they both ticked "No".

PURCHASE OF 6/331 CARLISLE AVENUE, MOUNT DRUITT. 7. On 21 February 1996, Ezzat Zaky, using the name "Ezzat William" purchased 6/331 Carlisle Avenue for $87,500. A New South Wales Land and Property Information Title Search dated 23 August 2010 shows "Ezzat William" as the owner, and a mortgage to Westpac Bank Corporation as a registered interest. 8. As the offender was residing in the family home owned by her husband in the name of "Ezzat William", she was not entitled to any rent assistance. 9. Centrelink periodically conducts reviews of recipients of pensions, including Disability Support Pension and Rent Assistance to assess the recipient's ongoing entitlements to payments and to update changes that may impact on a recipient's payment. 10. On 17 September 1996, the offender was selected for review by a Centrelink "Mobile Review Team". She was interviewed by the Mobile Review Team on 27 September 1996. The offender indicated during the review that her marital status was "married", and that she paid private rent of $175 per week to a landlord named "Mr Williams".

THE 1999 PARENTING PAYMENT REVIEW FORM 11. On 26 July 1999, Ezzat Zaky and the offender co-signed a Parenting Payment Review form, and lodged the form on 2 August 1999. Ezzat Zaky provided the following information:

His partner was Manerva Zaky
His dependent children were James and Shawn Zaky
He was not currently employed. (This was false as the offender was employed fulltime by the Department of Education as "Ezzat William")
Other income: Disability Allowance to Shawn Zaky
His total assets were $10,000
He paid rent to a Dr William: Q8. "Accommodation: Do you pay rent, lodging or board...?" "Yes, $175 to Dr William, PO Box 658 Broadway, 2007"
The offender and Mr Zaky declared that, "The information given on this form is correct."

THE 2004 CARER ALLOWANCE/PAYMENT CLAIM IN RESPECT OF SHAWN ZAKY 12. On 17 March 2004, the offender and Ezzat Zaky co-signed a Claim for Carer Allowance and/or Carer Payment for their son, Shawn Zaky, in which the offender provided the following information:

That her preferred language was English
That she had a partner, Ezzat (sic) Zaky, DOB 19/05/53, who was her husband, or a de facto
That her current marital situation was "Married". (Other options included "Separated")
That the defendant cared for Shawn Zaky, and his medical problems were "intellectually disabled, cognitive disorder, coordination disorder."
Both declared: "I understand that deliberately giving false or misleading information is a serious offence."

On 6 December 2005, Mr Zaky contacted Centrelink about his concerns for his wife. The Centrelink online document records that; "He doesn't believe he has time to work outside home as her health is deteriorating...customer was thankful that Centrelink had contacted him as he wasn't sure what to do as he believes his age and his wife's health would make it hard to find work therefore no income."

THE 2007 CARE ALLOWANCE/PAYMENT CLAIM IN RESPECT OF MANERVA ZAKY 14. On 25 January 2007, Ezzat Zaky made a claim for Carer Allowance and/or Carer Payment in relation to caring for Manerva Zaky, which he lodged with Centrelink on 29 January 2007. The form was co-signed by the offender. In that claim he provided the following information:

Their address was 6/331 Carlisle Avenue, Mt Druitt
Their home telephone number was 9832 3114, held in both his and in his partner's name
Q.10. "What is your current marital situation? Please tick only one box to best describe your current situation." 'Married' was ticked
The person being cared for: Mrs Manerva Zaky
Q.18. "Do you personally provide care to this person because of their disability or medical condition?" "Yes." "When did you start to provide this care?" "15/10/95." "How many days each week do you provide this care?" "Five days each week."
Q. 21. "Has the person left your care for any reason in the last 12 weeks?" "No."
Issues ticked: difficulty hearing others, need help or attention during the night, loss of bladder or bowel control, remembering things that happened today, have unusual, inappropriate or repetitive behaviours.
Q. 27, "In addition to Carer Allowance do you wish to claim Carer Payment also?" "Yes."
Q. 28. "Do you provide constant care to the person ... in their home?" "Yes."
Q. 32. "Do Centrelink already have current information about your ("and your partner's") income and assets?" "Yes."
Q. 38. "Who do you pay for your accommodation?" "E William PO Box 658 Broadway."
Q. 39. "What kind of rent, board, lodging or other fees do you pay?" Ticked: rent to a private landlord or real estate agent ..."
Q. 42 "Your and your partner's tax file numbers: U191896246.
I understand that giving false or misleading information is a serious offence.
The claim was co-signed by Ezzat Zaky and the offender. Identification documents provided in support of the claim were as follows: driver's licence for Ezzat Zaky, Medicare card for Ezzat and Manerva Zaky, passport for Manerva Zaky. This claim was rejected by Centrelink as the offender was found not to require daily care. Centrelink's records show that on 19 February 2007, the offender indicated to Centrelink that she would talk to her husband regarding the claim rejection.

2007 CARER ALLOWANCE PAYMENT CLAIM IN RESPECT OF JAMES ZAKY 16. On 29 March 2007 (lodged 30 April 2007) the offender and Mr Zaky co‑signed a claim for Carer Allowance and/or Carer Payment in relation to caring for their son, James Zaky, in which the offender gave the following information:

"Do you need an interpreter when dealing with Centrelink?" "No."
Address: 6/331 Carlyle Avenue, Mt Druitt 2770
Home number: 9832 3114
Q. 9 "What is your current marital situation?" 'Married' was ticked (other options include "Separated".)
Your partner's details: Mr Ezzat Zaky, 6/331 Carlisle Avenue Mt Druitt
Other names you have been or are known by: (left blank)
Q. 32. "Does Centrelink already have current information about your (and your partner's) income and assets?" "Yes."
Q. 35. "Which of the following best describes where you live?" Ticked: I pay rent ... for the place in which I live.
Q. 37. "Do you (and your partner) share with anyone else?" Ticked; No, crossed out, then ticked "Yes." and initialled
Rent $195 per week
"Who do you pay for your accommodation:" "E William, 6/331 Carlisle Avenue, Mt Druitt?" (The address was crossed out and replaced with P O Box 658, Broadway 2007, 0411369090.)
Q. 39. "What kind of rent or lodging or other fees do you pay?" Ticked - rent to a private landlord or real estate agent (for a house, flat ... ) The offender and her husband each declared that the information they provided on the form was complete and correct, and that "I understand that giving false or misleading information is a serious offence."

RENT ASSISTANCE CERTIFICATES IN RESPECT OF 6/331 CARLISLE AVENUE, MT DRUITT 17. Rent assistance was paid to Manerva Zaky as a component of her Family Tax Benefit Disability Support Pension. The offender was required to lodge "Rent Certificates" with Centrelink in order to continue to receive Rental Assistance. 18. The offender and her husband Ezzat Zaky lived in the property known as 6/331 Carlisle Avenue, Mt Druitt, owned by her husband in the name of "Ezzat William", and did not pay rent; 19. The exhibits contained the following rent certificates lodged by the offender, in each of which the true ownership of the property in which she dwelt and her payment of rent was misrepresented. (i) 20 December 2007 Rent Certificate (Lodged 27 December 2007). The offender provided the following information:

Q 1. "Do you own your own home?" Ticked - "No."
Q 2. "Are you (and your partner) currently paying rent ...?"-"Yes."
Q 10. "Details of your landlord:" "E William, 0411 369 090, P O Box 658 Broadway 2007"
Q. 23 "Do you (and your partner) share your accommodation with other people?" "Yes, Ezzat William, age 48."
"Your relationship to this person" "Owner"
"When did he/she first stay?" "15/11/95."
Total rent: $195 per week
Q. 27 "I declare that the information provided in this form is complete and correct. I understand giving false or misleading information is a serious offence."
The certificate was signed by M Zaky and "E William" (ii) 6 July 2008 Rent Certificate (Lodged 18 July 2008) The offender provided the following information:
Q. 1 "Do you own your own home?" Ticked - "No"
Q. 2 "Are you (and your partner) currently paying rent...?" "Yes."
Q10. Details of your landlord: Dr E Willam (sic), 0411 369 090, PO Box 658 Broadway 2007.
Q23. Do you (and your partner) share your accommodation with other people? No (crossed out). Yes, E Willam, (sic), age: 48.
Your relationship to this person: Owner.
When did he/she first stay: 15/11/95.
Total rent $198 per week.
The certificate was signed by M Zaky and E William (iii) 3 February 2009 Rent Certificate (Lodged 9 February 2009). The offender provided the following information:
Q1. Do you own your own home? Ticked -"No."
Q2. Are you (and your partner) currently paying rent...? -"Yes".
Q10. Details of your landlord: Dr E William 0411 369 090 PO Box 658 Broadway 2007.
Q23. Do you (and your partner) share your accommodation with other people? Yes, E William, age 49.
Your relationship to this person: Owner.
When did he/she first stay: 15/11/95.
Total rent $198 per week.
The certificate was signed by M Zaky and E William. (iv) 22 August 2009 Rent Certificate (Lodged 28 August 2009). The offender provided the following information:
Q3. Do you (and/or your partner) own a home or have a mortgage? No.
Q4. Do you (and/or your partner) own a home but live elsewhere? No.
Q5. Do you (and/or your partner) pay for accommodation? Yes.
Q8. Do you share your accommodation with other people? Yes, Dr E William, age 49.
When did they move in? 15/11/98.
Do they own the home? Yes.
The relationship to you: Owner.
Total rent: $198 per week.
Q12. Details of your landlord...: Dr E William 0411 369 090 PO Box 658 Broadway 2007.
Q13. I declare that the information provided in this form is complete and correct. I understand giving false or misleading information is a serious offence.
The certificate was signed by M Zaky and E William. (v) 7 March 2011 Rent Certificate (Lodged 10 March 2011). The offender provided the following information:
Q3. Do you (and/or your partner) own a home or have a mortgage? Answer, "No", and, the words "and/or your partner" were crossed out from the question.
Q5. Do you (and/or your partner) pay rent or fees for the accommodation listed? Yes. In addition, the words in the question "and/or your partner" were crossed out.
Q8. Do you share your accommodation with other people? Yes: Shawn Zaky (22), James Zaky (19), Ezzat William (51). Relationship to you: Owner.
Do they own their own home? Yes.
Q12. Details of your landlord...: Dr E William PO Box 658, Broadway 2007, 0411 369 090.
Q13. I declare that the information provided in this form is complete and correct. I understand giving false or misleading information is a serious offence.
The certificate was signed by M Zaky and E William.
On 7 March 2011 the defendant wrote to Centrelink stating:
"I would like to confirm that I am not the owner of the property 6/331 Carlisle Avenue, Mount Druitt. I live in this property with my two sons. I am separated from my husband since 1999. However, I do not have official certificate as divorce is forbidden according to our Christian Orthodox constitution and culture. He is the owner of the property and I pay the stated amount for lodging only...Thank you, Manerva Zaky."
Centrelink did not process this rent certificate.

In 2011, the offender's husband in the name of "Ezzat William" transferred the ownership of the Mount Druitt residence he had purchased in that name for $87,500 on 21 February 1996 to his and the offender's son Shawn Zaky for the stated sale/purchase price of $10,000.

INTERACTIONS IN CENTRELINK 21. As stated, on 17 September 1996 an online document records that the offender was selected for a Centrelink Mobile Review Team review and was interviewed on 27 September 1996. The offender indicated that her marital status was "Married", and her accommodation details as paying private rent of $175 per week to a landlord, Mr Williams. 22. On 26 July 1999, Ezzat Zaky and the offender co-signed a Parenting Payment Review Form and lodged the form on 2 August 1999. In this form, the offender represented that her partner was not employed. 23. On 6 December 2005 the offender's husband contacted Centrelink about his concerns for the offender, and stated he did not believe he had time to work outside home as her health was deteriorating. Mr Zaky indicated to Centrelink that he was thankful that Centrelink had contacted him as he was not sure what to do as he believed his age and his wife's health would make it hard to find work, therefore no income. 24. After Centrelink raised the debt against the offender for Disability Support Pension and rent assistance on 21 October 2010, the offender lodged a "separated, under one roof" claim on 21 April 2011.

CENTRELINK BENEFITS PAID TO THE OFFENDER

As a result of lodging the above-mentioned forms containing the stated information, the offender was paid between 26 July 1999 and 26 May 2007 Rent Assistance, in respect of the s 29D Crimes Act charge, a total amount of $4,561.66 into a Commonwealth Bank account, and in respect of the further offence contrary to s 134.2(1) a further sum between 27 May 2007 and 18 October 2012 a further sum of $22,813.12, also paid into a Commonwealth Bank account at the same branch, but with a different account number.

SUBJECTIVE MATTERS

The offender did not give evidence at trial and has not given evidence on sentence. She has no previous criminal history. She is now 52 years of age and is now a divorcee, having been divorced from her husband subsequent to the detection of her offending behaviour in 2010. Although the matrimonial home held in the false name of "Ezzat William" by the offender's husband was transferred to their son, Shawn Zaky, in 2011, the offender remains living with her two adult sons in those premises.
Apart from a Pre-Sentence Report, the only other material before the Court in respect of subjective matters is Exhibits Z1 and Z2. Z1 is a letter from a Dr Yajaman, dated 11 November 2014, in which he states that she has the following medical conditions:
Severe depression and anxiety - low mood and anxiety symptoms ongoing for last two years. He refers to a number of symptoms including such things as low mood, lack of appetite, feeling suicidal and taking tablets in that respect in the past, and to receiving mental health input from the Blacktown Mental Health Service, and counselling through a psychologist, and being treated with Zoloft.
That the offender has only one functional upper limb and she was born with a deformity of the left upper limb up to the elbow, due to the effects of Thalidomide taken by her mother during pregnancy.
That she also suffers from bilateral osteoarthritis of the knees, which affects her mobility and is described as moderate bilateral degenerative change and in respect of which she takes simple analgesia and glucosamine. I note in addition to that that she has always attended court with the use of a walking stick.
She has also reported Raynaud's Phenomenon which relates to the changing of colour of her right upper limb on exposure to cold weather.
She is prescribed vitamin D tablets for vitamin D deficiency.
Exhibit Z2 is a GP Mental Health Care Plan Patient Assessment. No report from any psychologist, psychiatrist, or from the Blacktown Mental Health has been provided to the Court in respect of the offender. I accept as relevant to this matter that she has the limitation in respect of her upper limb referred to, as well as bilateral osteoarthritis of her knees. I accept that at least for the last two years, she has had ongoing symptoms of depression and anxiety. Such is entirely consistent with the circumstances in which she has found herself as a result of her years of offending behaviour. The only other information in respect of the offender is that which is contained in the Pre-Sentence Report which is based on interviews with the offender, one of her sons, and contact with the Blacktown Mental Health Services, the Welfare Rights Centre, an unnamed psychologist, and of course the Facts and criminal history. She informed the officer that she had three siblings with whom she has no contact due to disagreements in respect of money arising around the time of the offences. She has stated that she does not have a network of friends and relies on her two sons for support and counsel. She reported that she and her sons have struggled with her mental health since the matters have come before the court. She claims that she has fallen out with her church, from which she had previously had support, as divorce is not an accepted part of her faith, and that she feels a burden on the lives of her sons, and that a son had interrupted a previous suicide attempt by her.
In respect of education and employment, she has reported that she was bullied at school due to her disability and experienced learning difficulties with reading and writing. She claims to still struggle with literacy, and that she is unable to read and conducts tasks by using pictures. Having left school in Year 11, she attended at the St Leonards TAFE to complete training in typing, and for that purpose receives special assistance with the course due to her learning problems and her disability. After TAFE, she was employed by Myers for a few months and for a further period of two years by the Commonwealth Bank. Most of her work revolved around clerical duties, but she claims difficulty with those roles, and that she was encouraged to leave the Commonwealth Bank once her literacy problem could not be hidden, and that she was fired from Myers for similar reasons.
She currently receives a Centrelink pension. Although the pension payments were ceased as a result of the offences, they have since been reinstated as a result of assistance from Welfare Rights Centre Sydney. She claims that during the course of her marriage, she was the subject of verbal and emotional abuse from her husband calling her "dumb' and "stupid' and asserting that she was no good at anything. and that he made fun of her physical disability. She claims to still experience significant issues in respect of her ability to both read and write and that she has always experienced difficulties completing forms and documentation.
Under 'Attitude to Offending' the following is recorded: "Ms Zaky appears to have limited understanding of the details surrounding the offences. She claims that her former husband would complete all the forms associated with Centrelink and that she would sign the form based on what he informed her was the purpose. Ms Zaky claims she does not understand the forms, and that she was informed by her ex-husband that they were for her pension. Ms Zaky presented in an emotional state when discussing the offences, stating on a number of occasions that her boys should not have to be put through this process with her. She said that she is sorry for her involvement in the offences and admits that she did sign each form, adding that part of her feels like a victim as she did not have an understanding of what she was signing. Ms Zaky stated that she is willing to comply with any community based sentencing options the court may impose".
She was assessed as having a low risk of re-offending. Further in the report, the following is contained: "Ms Zaky claims a limited understanding of the details of her offence stating inability to read and write. She becomes emotional when discussing her offences, showing concern for the thoughts and feelings of her sons. Ms Zaky states that she is sorry for what she has done and accepts the court's guilty ruling, being embarrassed by her situation to the point she claims she has not told anyone of the matter."
It is clear to the Court from the evidence in the trial that whatever limitations the offender may have in respect of her literacy skills, if she has any, that she fully understood what she was doing in respect of committing the offences. The commission of the offences included her on a number of occasions having to verbally provide information to the relevant government authority. I am of the view that the offender has simply tried to diminish her moral culpability for the commission of the offences by seeking to blame her husband for the offending conduct in circumstances where she was fully aware that she was committing offences.
The matter was next before me for sentence on 14 November 2014.
After the trial was completed on 2 October 2014, during that period there had been no repayment in respect of the funds the offender had obtained, except to the extent that the Department had made compulsory deductions from her reinstated benefit to the sum of approximately $616, her benefit having been reduced for the purpose repayment by $77.10 per fortnight.
On 25 November 2014, with the consent of the offender's legal representative, the Commonwealth DPP provided a letter indicating that "In fairness to the offender, the Crown seeks to submit further the full amount of the debt owed by the offender to Centrelink is $149,093.67 (this amount includes the debt subject of the charges and administrative debts not charged) and as at 14 November 2014 the offender had repaid to Centrelink a total of $12,849.59 by withholdings from her Centrelink benefits. However all but $616.80 of that sum has been attributed by Centrelink to a debt which is not the subject of proceedings before the court. This attribution arises from Centrelink policy to attribute any repayment to a customer's oldest existing debt."
I am not aware of the basis of what is referred to as "the full amount of debt owed by the offender to Centrelink" being in the sum of $149,093.67. However, in short, as relevant to this matter, whatever be the case in relation to repayments by deductions from benefits, the fact is that over the period from 2 August 1999 to about 14 October 2010, the offender received a total of $27,374.78 to which she was not entitled, and any repayment was only as a result of compulsory deductions from further benefits paid since that time.
When the matter was before me on 14 November 2014, after completion of submissions and immediately prior to adjournment, Mr Glennon, counsel for the offender indicated for the first time that Mrs Zaky's son would pay the outstanding debt. Today a document has been produced which is titled "net bank receipt Commonwealth Bank" relating to $27,374.78 which is said to represent a transfer of the total amount obtained to Centrelink having been made on Tuesday 25 November 2014 at 8.52pm. Inquiries by the Department as to whether such a sum has been received earlier today have been unable to confirm such a repayment. I will however proceed on the basis that the amount obtained over the years has now been repaid.
Although the offender was convicted of two offences as I have previously indicated they represent a course of continuing criminal conduct over a period of approximately 11 years, the 11 years being divided as a result only of a change in the legislation and the relevant offence for the differing periods.
The debt was raised in 2010; the offender defended the matters at trial in respect of what was an overwhelming Crown case and demonstrated by doing so no remorse or contrition in relation to her conduct. She has of course had the benefit of the money obtained for years. She has of course only repaid the total debt not in addition any notional interest that the Commonwealth may have earned had the money remained as a credit in their accounts.
The payment from whatever source in recent days in the circumstances could hardly be seen to be any recognition that the offender has committed offences rather than, at the death knell of sentencing, simply an attempt to mitigate the severity of any sentencing that might be appropriately imposed.
While the Pre-Sentence Report indicates that the offender now acknowledges commission of the offences. I am of the view that she continues to falsely attempt to diminish her moral culpability in respect of the offences.
The principles relating to the sentencing for offences of this nature have been well established over the years. In R v Van Tung Luu (NSWCCA unreported, 7 December 1994), Street CJ stated at page 3: "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."
In R v Purden (NSWCCA unreported, 27 March 1997) Hunt CJ at CL stated: "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 difficulty 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 tax payers 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..."
Those sentiments have been repeated in many cases since that time. The amount of money and the length of time over which the fraudulent offending has occurred are significant and relevant considerations in determining the objective seriousness of the offending. R v Hawkings (1989) 45 A Crim R, 430 Lee J at 430-35.
General deterrence has been held to be of prime importance in sentencing for offences of this nature. R v Annecchini (NSWCCA, unreported No.60318 of 1995, delivered 24 April 1996). In particular, the comments of Gleeson CJ, and similarly, in R v Cameron (1993) 171 LSJS 305 and the observations of King CJ at 307.
The approach to sentencing for offences of this nature as established by those authorities was reiterated in more recent times in Ralph v Narwojee [2003] WASCA 5 at 25-27.
The principles referred to in those cases are of course clearly relevant to the offender.
The offender's conduct involved a wide ranging course of fraudulent conduct in which various interrelated claims were made, and sustained, as part of a complex web of lies and deceit, all of which were designed to defraud the Commonwealth. Each of the offences involved a course of conduct comprising numerous acts on the part of the offender directed towards achieving the ultimate dishonest end represented by the offences.
Both specific and general deterrence are very important factors in relation to offences of this nature. Any sentence imposed must signal to would-be fraudsters that the potential financial rewards to be gained from activity such as this will be neutralised by the risk of severe punishment. R v Cheung Wai Man and Ors (NSWSC 22, March 1991, unreported, per Sully J), cited with approval in R v Chen and Ors (2002) 130 A Crim R 300 at 382.
The offender, now 52 years of age, was 37 years of age at the time the course of conduct commenced. She was 48 years of age when it was finally detected and the payment ceased. The offender has some personal physical difficulties; they must be taken into account but of note in respect of her difficulties. In R v Wood [2005] NSWCCA 233, Howie J, in respect of pre‑existing conditions present during the period of offending relevantly stated at (20): "It is important that there be no suggestion that a person can offend in a significant, deliberate way and yet rely upon personal factors existing during the time of the offending to be treated in a manner markedly different from other offenders. It is trite that age or ill health cannot be seen as a licence to commit crime with impunity..."
In respect of the limited material before the court as to the offender's depression and anxiety I note that it appears only to have arisen in recent times and particularly as a result of the fact that her offending behaviour was detected.
As I have previously indicated, in the circumstances I am unable to find any significant evidence of remorse or contrition, rather than personal concern for the circumstances in which the offender now finds herself. I am unable to find that the recent repayment is evidence of remorse or contrition.
I accept that there is a low risk of the offender reoffending considering her age and her lack of offending other than for the 11 year period covered by these offences and for the simple reason that the Commonwealth authorities now know that she is a person prepared to commit such an offence and it is unlikely that she would expect not to be detected.
While the sum of approximately $27,000 over a period of 11 years may not sound like much it is however a significant sum. It is the course of conduct and the continuing misrepresentations and deceits as part of an elaborate scheme that makes these serious incidents of offences of this nature.
The offender is convicted in respect of each of the two offences. I have considered all the alternative sentences available and the submissions that have been made on the offender's behalf and I am satisfied that no alternative to full time imprisonment is appropriate for the reasons I have already referred to, that is the seriousness of the offence, the period over which it was conducted and the extensive and complex nature of the fraud committed against the Commonwealth.
I note that the offender was dealt with on indictment because she was committed for trial on these offences and other offences and that at least some of the other offences were offences with which her husband was also charged. I am not aware of the particular extent of overlap but the circumstance is that as a result of the inter-relationship of some charges with charges against her husband she was committed for trial to this court, including for the offences for which she stood trial. Having been committed for trial to the District Court there was some resolution of charges in respect of the offender's husband which resulted, as I understand it, in the discontinuation of some offences alleged against the offender. The result being that the two offences in respect of which she has now been convicted at trial were in fact offences which could have been dealt with in the Local Court and except in the circumstances of her having been already committed for trial, these matters would have been dealt with in the Local Court. When dealt with in the Local Court the Court would have been limited to considering a maximum penalty in relation to either of the offences of two years. However the Local Court can also accumulate sentences where appropriate.
In the circumstances of this matter I have taken the view that it is appropriate for the court to consider that each of the offences should be subject to the range appropriate in the Local Court.
While it is a single course of conduct I am of the view that there must be a separate sentence in respect of each of the offences. I have considered whether it would be appropriate considering that it was a continuing course of conduct whether the sentences to be imposed should be entirely concurrent.
I have concluded that there should be at least some accumulation to reflect the differing length of periods relevant to each offence and the differing amount relevant to each offence.
Accordingly in respect of the offence contrary to s 29D of the Crimes Act 1914 the offender is sentenced to a period of imprisonment of six months to date from today it will expire on 27 May 2015.
In respect of the offence contrary to s 134.2 (1) of the Criminal Code 1995 the offender is sentenced to a term of imprisonment of 18 months, it will commence two months after the commencement of the last sentence imposed, that is it will commence on 28 January 2015 and expire on 27 July 2016.
I will make a recognisance release order particularly taking into account that the offender's physical disabilities will make a term of imprisonment harder for her to serve than it would for a person who did not suffer her physical disabilities although I am of the view that there will be no difficulty in Corrective Services coping with her personal physical disabilities.
I will make a recognisance release order taking account of those matters and accordingly I order that the offender be released from prison after having served a period of 10 months of the total sentence, on 27 September 2015, on entering into a recognisance in the sum of $5,000 to be of good behaviour for a period of two years. Now, Madam Crown, were there any errors in terms of facts and/or the sentence imposed? OGDEN: No your Honour the only other matter that the Crown would raise is just a reparation order in the circumstances. HIS HONOUR: Yes and I will make a reparation order in the sum of $27,374.78. I note of course, Madam Crown, that if the funds said to have been transferred have been transferred, no doubt you will not be relying on the reparation order. OGDEN: Correct, your Honour.

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