Zaky v R

THE FACTS

1. In short, the facts of the offence were that the applicant received benefits (rental assistance) to which she was not entitled over a period of around 11 years. The benefits were received as a result of a series of false representations which led the Commonwealth to believe that she was paying rent whereas, in fact, the owner of the premises in which she lived was her then husband. Her husband had a variety of aliases. This facilitated the deception. The sentencing Judge set out the facts in some detail in his remarks on sentence. The facts go back in time before the period of offending and it is unnecessary for present purposes to set out the earlier events other than to note that they placed in context the deceptions upon which the two charges were based. The facts and falsehoods upon which the charges were based were set out in the remarks on sentence as follows: "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...?" A. "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." 13. 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 CarerPayment 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 P O 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).1 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. 20. 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."
2. It can be seen from this short overview of the acts done during the relevant period that the deception was a sustained one and of more complexity than is often seen in cases of social security fraud. This was not a case where there was one deception at the outset, or one where circumstances changed, followed by a failure to correct the deception, or error for fear of the overpayments being uncovered. Apart from the fact that the total amount received was relatively small, this was quite a serious example of an offence in the nature of social security fraud. For these reasons, Ms Francis (who appears for the applicant) made no suggestion that the sentence was manifestly excessive in the sense that its length and content disclosed or suggested latent error.

MITIGATING FEATURES AND THE APPLICANT'S PERSONAL CIRCUMSTANCES

1. The applicant was convicted at trial and received no benefit from a willingness to facilitate the course of justice. There was no evidence of remorse on her part. There was a belated repayment of the money by the applicant's son but King DCJ did not consider this to be a mitigating feature but rather an attempt to mitigate penalty at a very late stage.
2. However, there were some reasonably compelling features in the personal circumstances of the applicant.
3. This included the fact that she had only one functioning upper limb as a result of her mother taking thalidomide during her pregnancy. There was also evidence in a pre-sentence report that the applicant "suffers from bilateral osteoarthritis causing chronic pain in her knees, she requires a walking stick to assist with mobility is unable to stand or sit for prolonged periods". A letter from a medical centre confirmed a number of her physical ailments and medical conditions. King DCJ accepted this evidence and noted that his observations during the trial were that the applicant was in some discomfort as a result of her arthritis. It was submitted, and his Honour accepted, that this would make any period of custody more onerous upon her. Evidence tendered on the hearing of the appeal on the "usual basis", confirmed that the applicant's incarceration was more onerous as a result of her disabilities. However, this material will only inform the outcome of this appeal if error is otherwise established.
4. A pre-sentence report was prepared and tendered by the Crown on the sentencing hearing. The applicant was a 52 year old woman with a significant physical disability who had no previous criminal offences recorded against her. She described an "unpleasant education experience" and experienced difficulties with reading and writing. She had some employment in her past but was on a Centrelink pension at the time of sentence. She reported that she was subject to both verbal and emotional abuse in the course of her marriage.
5. The pre-sentencing report made an actuarial assessment of her risks and needs and posited that the applicant was a low risk of re-offending. King DCJ accepted this assessment finding that "there is a low risk of reoffending considering her age and her lack of offending other than for the 11 year period covered by these offences."
6. The report also stated that the applicant would "benefit from a short period of supervision by Community Corrections". She was assessed as suitable for a community service order and has signed the necessary undertaking to perform such work. She was "deemed ineligible" because the authorities were "unable to secure work that accommodates her physical issues".

SENTENCING ALTERNATIVES FOR COMMONWEALTH CRIMES

1. A matter that received little attention either at first instance or on the hearing of the appeal was the fact that the sentencing options available to the District Court were not determined, directly at least, by the provisions of the Sentencing Act. In spite of the prominence that the matter took on appeal, a "suspended sentence" under s 12 of the Sentencing Act was not (in terms) an available sentencing option. Because the District Court was exercising federal jurisdiction in relation to offences committed contrary to a Commonwealth statute, the sentencing options were governed by Part 1B of the Crimes Act. Section 20AB(1) of the Crimes Act provides: "Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence."
2. The sentences or orders "prescribed for the purposes of this section" are found in clause 6 of the Crimes Regulations 1990 (Cth). The table in clause 6 does not include a suspended sentence.
3. However, this distinction has no bearing on the outcome of the present appeal. A "suspended sentence" effectively exists under another name in the Crimes Act. Section 20(1)(b) provides: "(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (a) … (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1)."
4. I propose to deal with the grounds of appeal on the basis that the views expressed by the Sentencing Judge applied equally to an order under s 20(1)(b) as they did to a suspended sentence.

GROUNDS OF APPEAL 1. The sentencing judge erred in the conclusion that a suspended sentence is "hardly a penalty." 2. The sentencing judge took into account an irrelevant consideration in the conclusion that a suspended sentence is "not a penalty" by adverting to the abolition of such an alternative in Victoria

1. The grounds of appeal are closely related and can be dealt with together. Each arises from remarks made by the primary Judge in the course of argument. The impugned remarks were not repeated in the remarks or judgment on sentence. That judgment was reserved and the remarks on sentence delivered two weeks after the submissions.
2. After the legal representative for the applicant had made his submissions, the advocate representing the Commonwealth Director of Public Prosecutions was making submissions as to the appropriate penalty. In particular the advocate made the following significant concession: "Your Honour, it would be the Crown's position as in all matters of Centrelink fraud the starting position has to be a full-time sentence of imprisonment as outlined in our submission but it would be the Crown's case that - just one moment your honour. It's the Crown position, your Honour, that it would not be appellable to consider other options in these circumstances."
3. That concession prompted the sentencing Judge to make a series of statements from the bench some of which were unquestionably erroneous. First, his Honour referred to the fact that alternatives to gaol "appear to be very limited", and that "community service is not available". A submission by the applicant's lawyer that an intensive correctional order (ICO) was unlikely to be available given the unavailability of community service was accepted by his Honour. The following exchange then occurred: "HIS HONOUR: And a suspended sentence is hardly a penalty. [PROSECUTOR]: Yes, the only other options are - - HIS HONOUR: In fact, to the extent that it's not a penalty I notice that the Victorian jurisdiction has abolished suspended sentences on the basis that they have come to the conclusion that they are entirely ineffective."
4. The sentiment behind those remarks was plainly erroneous. The respondent accepts that if those remarks reflected the final view taken by the sentencing Judge, the proceedings miscarried. The question on the appeal was whether or not the remarks ultimately informed his Honour's decision to impose a sentence of full-time custody rather than some alternative and in particular the alternative of a suspended sentence or, more correctly, a recognizance release order under s 20(1)(b) Crimes Act.
5. The concession made by counsel for the respondent as to the erroneous nature of those remarks is clearly correct. What has happened in Victoria, and the reason why it has happened, was of no relevance to a proper and judicial exercise of the sentencing discretion in the applicant's case. Further in a series of cases, this Court has made it clear that while there is an element of leniency in the suspension of a sentence, it remains a gaol sentence and an appropriate and available sentencing option. It is unfortunate that this needs to be stated yet again, but it is appropriate that I repeat comments made in previous cases.
6. In Regina v Zamagias [2002] NSWCCA 17 Howie J said at [32]: "[32] Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender."
7. R v Nahlous [2013] NSWCCA 90 Adamson J (with whom Hoeben CJ at CL and Davies J agreed) said at [86]: "[86] This Court has consistently emphasised that a suspended sentence is a sentence in its own right and ought not be regarded as no punishment at all: R v Zamagias [2002] NSWCCA 17 at [31]. As Bray CJ, (Bright and Zelling JJ agreeing) said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, that view: "... reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. "
8. In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Kirby J said at [74]-[76]: "[74] The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The "[c]onceptual [i]ncongruity" involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all. [75] The statutory power to impose suspended sentences of imprisonment exists in Australia under federal law and in every State and territory jurisdiction. The power long existed in New South Wales. It was abolished in that State in 1974 following the recommendation of an expert committee. Subsequently, however, the Law Reform Commission of that State recommended restoration of this sentencing option. It is a measure of the favour with which suspended sentences of imprisonment are commonly viewed that this sentencing option was then restored as part of the law of that State. [76] Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified."
9. Gleeson CJ and Hayne J said at [17]: "[17] The sentence imposed on the appellant by the trial judge was undoubtedly merciful. Ordinarily, conduct of the kind committed by the appellant would merit immediate imprisonment for a significant period. While that is ordinarily the case, we do not accept that it is an invariable rule. We agree with Gaudron and Gummow JJ and with Kirby J that, in the circumstances of this case, the sentence passed at trial was not manifestly inadequate. The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation. These will often be significant, but there may be other relevant matters, of the kind taken into account by the trial judge in the present case. That being so, we joined in the orders which have earlier been pronounced." See also Gaudron and Gummow JJ at [26].
10. Not only were the comments of King DCJ contrary to repeated statements of principle by appellate courts, they were also contrary to a study published by NSW Bureau Of Crime Statistics And Research: Lulham, Weatherburn and Bartels, "The recidivism of offenders given suspended sentences: A comparison with full-time imprisonment" Crime and Justice Bulletin: Contemporary Issues In Crime And Justice vol 136 (September 2009) ("BOCSAR report"). That study compared recidivism rates of offenders subject to prison sentences and those who received suspended sentences under s 12 of the Sentencing Act. The report suggests that suspended sentences are a useful and important sentencing option in terms of "promoting the rehabilitation of offenders": cf s 3A(d) Sentencing Act. The report noted at 10: "The aim of the present study was to examine the relative efficacy of suspended sentences and full-time imprisonment in reducing the risk of further offending. Our results provide no evidence to support the contention that offenders given imprisonment are less likely to re-offend than those given a suspended sentence. Indeed, on the face of it, the findings in relation to offenders who have previously been in prison are inconsistent with the deterrence hypothesis. After the prison and suspended sentence samples in this group were matched on key sentencing variables, there was a significant tendency for the prison group to re-offend more quickly on release than the suspended sentence group."
11. The report concluded at 13: "The value of suspended sentences as a sentencing option is clearly a matter of considerable debate. The present study resolves only one element of this debate but it is a fairly important element to resolve. Taken as a whole, our findings suggest that sentencers contemplating imposing a suspended sentence instead of full-time custody need not be concerned about the possibility that imposing a suspended sentence will increase the risk of recidivism. As a means of reducing the risk of further offending, suspended sentences are as effective as, if not more effective than, a sentence of full-time imprisonment."
12. Since preparing the draft of this judgment I have had the opportunity to read the additional comments of Johnson J. I gratefully adopt his Honour's review of more recent discussions concerning suspended sentences by the Australian and NSW Law Reform Commissions. I note that the findings of the BOCSAR report (see above at [34]-[35]) are referred to by the NSW Law Reform Commission in its report at [10.22].
13. There is no doubt that the comments of the sentencing Judge betrayed a significant error of principle. The question remains whether the remarks, occurring as they did two weeks before the remarks on sentence were delivered, reflected the final and considered view of the sentencing Judge. Ms Francis refers to the fact that at no stage did his Honour retract those views either in argument or in the course of the remarks on sentence. She also relies on the fact that his Honour did not refer to the concession that had been made by the Crown. She refers to the case of RCW v R (No 2) [2014] NSWCCA 190 at [37] where RA Hulme J (Bathurst CJ and Adams J agreeing) said: "Before turning to the proceedings on sentence it is worth being clear about the utility of doing so. 'Normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision': R v Pham [2005] NSWCCA 94 at [11] (Wood CJ at CL). However, there are circumstances in which there may be some utility in having regard to statements from the bench during the course of submissions; for example, when they can assist in elucidating abbreviated statements appearing in remarks on sentence: Peiris v R [2014] NSWCCA 58 at [67] (Leeming JA). In my view there is also some utility where during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment."
14. Counsel for the respondent relies on the general principle that observations made by a Judge in the course of argument are not generally regarded as sufficient to establish error or as indicating the basis of the reasoning adopted by a Judge at first instance. He submits that his Honour's unfortunate remarks cannot properly be seen as representing final and considered reasons for failing to suspend the sentence. He relies on the fact that the matter was not subject to an ex tempore decision following immediately upon the exchange to which the applicant refers. That was considered to be a relevant consideration in RCW v R (No 2) where the court set out two circumstances in which comments made in argument might be used in support of a ground of appeal.
15. The first of those circumstances was where the comments "can assist in elucidating abbreviated statements appearing in the remarks on sentence". The second is where "during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment".
16. The respondent submits that neither of those circumstances apply in the present case and that the general proposition stated in cases such as R v Egan [2013] NSWCCA 196 and Geddes v R [2012] NSWCCA 94 are applicable. Those cases represent strong authority, if such were needed, that the exchanges between bench and bar in the course of submissions cannot ordinarily be used in support of a ground of appeal particularly when a reasoned judgment follows after a period of adjournment.
17. I accept the respondent's submission that when his Honour came to impose sentence he explained the reason that he had concluded that a full-time custodial sentence was the only available sentencing option. King DCJ said: "I have considered all the alternative sentences available and the submissions that have been made on this 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."
18. There is nothing to suggest that his Honours ill-considered and infelicitous comments in relation to the option of suspending sentence informed those remarks. The remarks on sentence were clear on their face and needed no elucidation by reference to what had been said during the course of the submissions. It is significant, on the authorities, that the judgment was reserved for a period of two weeks.
19. While a different sentencing Judge may have taken a different view, there is no submission that it was not open to King DCJ to conclude that a full-time custodial sentence was the only appropriate option in the exercise of his discretion. It is true, as Ms Francis pointed out, that the case was one that would ordinarily have been dealt with in the Local Court and that the prescribed maximum penalty would then have been two years in respect of each of the offences. However, that is a matter that the sentencing Judge specifically adverted to and took into account. The sentence itself does not suggest that there must be some reason, possibly ascertainable in comments made in the course of argument, that led the Court into erroneous disposition of the applicant's case. The imposition of a full-time custodial sentence was in accordance with a long line of authority that "persons who abuse the system of social welfare must expect to face heavy penalties": R v Van Tang Luu (CCA (NSW), 7 December 1994, unrep) and "a custodial sentence is to be imposed for social security fraud except in very special circumstances": R v Purden (CCA (NSW), 27 March 1997, unrep).
20. For those reasons I would not uphold Grounds 1 and 2. The question of the utility of suspended sentences is an important one and I would grant leave to appeal. However, the appeal should be dismissed.
21. The orders that I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 25 June 2015 - Para [42] typographical error [34] - [35] was changed to [40]-[41]. 25 June 2015 - Paragraph renumbering DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2015