CRIMINAL LAW – Appeal – Sentence – Dishonestly obtaining financial advantage by deception from Commonwealth entity and dishonestly causing loss to Commonwealth entity – Appellant received certain disability support pension payments under false representations – Sentenced to 27 months’ imprisonment with recognisance release order after 9 months – Whether manifest excess – Appalling childhood diminished moral culpability – Leave to appeal granted – Appeal allowed – Resentenced to 12 months’ imprisonment with recognisance release order after 130 days – Bugmy v The Queen (2013) 249 CLR 571 applied.
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Counsel
Appellant:
Ms J Swiney
Respondent:
Ms K Breckweg QC
Solicitors
Appellant:
Dane Keenes Legal
Respondent:
Mr S Bruckard, Solicitor for Public Prosecutions (Cth)
T FORREST JA EMERTON JA:
On 18 May 2022, the Criminal Registrar of this Court granted an extension of time in which to file notice of application for leave to appeal against sentence. On 10 June 2022, we granted leave to appeal and allowed the appeal against sentence, substituting an aggregate sentence of 12 months’ imprisonment, with the appellant to be released after serving 130 days on a recognisance release order.
These are our reasons for allowing the appeal.
The appellant pleaded guilty to two charges of obtaining a financial advantage by deception. On 31 January 2022 in the County Court she was sentenced as follows:
Charge
Offence
Max Penalty
Sentence
Commencement
1
Dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) Criminal Code (Cth)
10 years’ imprisonment
27 months’ imprisonment
31 January 2022
2
Dishonestly causing a loss to a Commonwealth entity contrary to s 135.1(1) Criminal Code (Cth)
10 years’ imprisonment
2 months’ imprisonment
31 January 2022
Total Effective Sentence:
27 months’ imprisonment
Recognisance Release period:
To be released after serving 9 months of the sentence of imprisonment on entering a recognisance in the sum of $1,000 to be of good behaviour for a period of 3 years.
Pre-sentence Detention Declared:
Nil
Other Relevant Orders:
1. Reparation order made pursuant to s 21B of the Crimes Act 1914 (Cth) in the sum of $109,043.47.
Summary of the offending
An agreed Crown opening for the plea hearing provides an adequate summary of the offending. We shall reproduce it.[1]
[1]Crown Opening for Plea Hearing, [3]–[20].
The [appellant] has been in receipt of social security benefits since 2009. During the period of offending the [appellant] was in receipt of Disability Support Pension.
Disability Support Pension is payable to eligible persons who have been assessed as having a physical, intellectual or psychiatric condition and as being unable to work more than a specified number of hours per week. The rate of benefit payable is affected by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Black v The Queen [2022] VSCA 125
Case
[2022] VSCA 125
Decision Date
CaseChat Overview and Summary
Black brought an appeal against his sentence following a conviction for obtaining financial advantage by deception from a Commonwealth entity and causing loss to a Commonwealth entity. The conviction related to the appellant receiving certain disability support pension payments under false representations. The primary judge sentenced the appellant to 27 months’ imprisonment with a recognisance release order after nine months. The appellant sought leave to appeal on the ground that the sentence was a manifest excess, given his appalling childhood which diminished his moral culpability. Leave to appeal was granted, and the appeal was subsequently allowed.
The appellant submitted that the primary judge failed to sufficiently discount the appellant’s culpability for the offences, given his appalling childhood. The appellant also submitted that the sentence was manifestly excessive as it failed to accord with the principle of proportionality. The Crown submitted that the sentence was appropriate and that the primary judge had given proper consideration to the appellant’s mitigating circumstances. The Crown also submitted that the sentence was not manifestly excessive as it was within the range of sentences available for the offences.
The High Court held that the sentence was manifestly excessive, as the primary judge had failed to sufficiently discount the appellant’s culpability for the offences. The primary judge did not adequately consider the appellant’s appalling childhood and its effect on the appellant’s moral culpability. The High Court held that the sentence was manifestly excessive, as it did not accord with the principle of proportionality. The High Court applied Bugmy v The Queen (2013) 249 CLR 571 and resentenced the appellant to 12 months’ imprisonment with a recognisance release order after 130 days.
The High Court remitted the matter to the Court of Appeal to make the appropriate orders in relation to the re-sentencing.