Coombe v The Queen - [2009] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COOMBE -v- THE QUEEN [2009] WASCA 105

CORAM: WHEELER JA
PULLIN JA
MILLER JA

HEARD: 8 JUNE 2009

DELIVERED : 8 JUNE 2009

PUBLISHED : 25 JUNE 2009

FILE NO/S: CACR 171 of 2008

BETWEEN: DIANNE JANE COOMBE
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 1517 of 2008

Catchwords:

Criminal law - Sentencing - Social security fraud - Commonwealth defrauded of more than $100,000 over 10 years - Appellant the mother of two small children - Children cared for by appellant's sister while appellant in prison - Whether sentence of immediate imprisonment was manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 16A(2), s 29
Criminal Code (Cth), s 135.1(5)

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D W L Renton & Ms L J Atkins

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

R v Cameron (Unreported, SASC, 19 July 1993)
R v Mitchell (Unreported, WASCA, Library No 980618, 28 October 1998)
The State of Western Australia v Wynne [2008] WASCA 195

JUDGMENT OF THE COURT: The appellant appealed against her sentence and applied for leave to appeal. After hearing the appeal the court granted leave to appeal but dismissed the appeal with reasons to be published later. These are the reasons.
The appellant pleaded guilty on 31 October 2008 to two counts in an indictment which read:
(a)Between 22 February 1996 and 23 May 2001 at Perth … and elsewhere [the appellant] defrauded the Commonwealth in the amount of $16,595.29 by continuously and dishonestly failing to correctly inform the Department of Social Security and then, from 1 July 1997, the Commonwealth Service Delivery Agency (Centrelink) that she was residing overseas, contrary to s 29D of the Crimes Act 1914 (Cth).
(b)Between 1 July 2001 and 30 June 2006 at Perth … and elsewhere [the appellant] dishonestly caused a loss of $85,845.70 to another person, namely the Commonwealth Services Delivery Agency (Centrelink) which is a Commonwealth entity, knowing or believing that there was a substantial risk of the loss occurring contrary to subsection 135.1(5) of the Criminal Code (Cth).
The sentencing judge sentenced the appellant on count 1 to a term of 20 months' imprisonment and in relation to count 2, a term of 12 months' imprisonment to be served cumulatively upon count 1, making a total of 32 months' imprisonment. The sentencing judge also directed that the appellant should be eligible for release pursuant to a recognisance release order after she had served 12 months of that sentence. The sentence was ordered to commence on 31 October 2008.
The ground of appeal asserts the total sentence of immediate imprisonment imposed was manifestly excessive 'when viewed against comparable cases and in all the circumstances'. The circumstances identified were…

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.

Continue reading Coombe v The Queen

Details

AGLC: Coombe v The Queen [2009] WASCA 105
Case: [2009] WASCA 105
Decision Date: 8 JUNE 2009

CaseChat Overview and Summary

In Coombe v The Queen, the appellant, Coombe, appealed against her sentence of immediate imprisonment for defrauding the Commonwealth of over $100,000 over a period of 10 years. The appellant was sentenced to a total of 32 months' imprisonment, with eligibility for release on recognisance after 12 months. The appeal centred on whether the sentence was manifestly excessive when viewed against comparable cases and in all the circumstances. The primary contention was that exceptional circumstances warranted a non-custodial sentence due to the impact imprisonment would have on the appellant's young children.

The legal issues the court was required to decide included whether the sentence was manifestly excessive and whether exceptional circumstances existed to warrant a non-custodial sentence. The court had to consider the plea of guilty, the appellant's antecedents, the circumstances of the offending, and the impact on her children. The appellant argued that the sentence was excessive and that there were exceptional circumstances justifying a non-custodial sentence, particularly due to the effect on her children, who were cared for by her sister while she was in prison.

The court granted leave to appeal but dismissed the appeal. The court considered the totality of the circumstances, including the gravity of the offending, the appellant's culpability, and the impact of the sentence on the children. The court held that while the impact on the children was a significant factor, it did not outweigh the seriousness of the offending and the need for general deterrence. The court concluded that the sentence was not manifestly excessive and did not constitute a significant departure from the principles of sentencing in similar cases. The appeal was dismissed, and the original sentence was upheld.

The final orders were that the appellant's appeal against her sentence was dismissed, and the original sentence of 32 months' imprisonment with eligibility for release on recognisance after 12 months was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant appealed against her sentence and applied for leave to appeal. After hearing the appeal the court granted leave to appeal but dismissed the appeal with reasons to be published later. These are the reasons. The appellant pleaded guilty on 31 October 2008 to two counts in an indictment which read:(a)Between 22 February 1996 and 23 May 2001 at Perth … and elsewhere [the appellant] defrauded the Commonwealth in the amount of $16,595.29 by continuously and dishonestly failing to correctly inform the Department of Social Security and then, from 1 July 1997, the Commonwealth Service Delivery Agency (Centrelink) that she was residing overseas, contrary to s 29D of the Crimes Act 1914 (Cth).(b)Between 1 July 2001 and 30 June 2006 at Perth … and elsewhere [the appellant] dishonestly caused a loss of $85,845.70 to another person, namely the Commonwealth Services Delivery Agency (Centrelink) which is a Commonwealth entity, knowing or believing that there was a substantial risk of the loss occurring contrary to subsection 135.1(5) of the Criminal Code (Cth). The sentencing judge sentenced the appellant on count 1 to a term of 20 months' imprisonment and in relation to count 2, a term of 12 months' imprisonment to be served cumulatively upon count 1, making a total of 32 months' imprisonment. The sentencing judge also directed that the appellant should be eligible for release pursuant to a recognisance release order after she had served 12 months of that sentence. The sentence was ordered to commence on 31 October 2008. The ground of appeal asserts the total sentence of immediate imprisonment imposed was manifestly excessive 'when viewed against comparable cases and in all the circumstances'. The circumstances identified were the plea of guilty, the appellant's antecedents, the circumstances of offending and the impact on the appellant's children. In oral submissions it became clear that the central plank of the appellant's submission was the contention that there were exceptional circumstances warranting a non‑custodial sentence because of the impact imprisonment would have on the appellant's young children. The facts were that the appellant resided for approximately 10 years in the United States whilst in receipt of Centrelink payments which were paid into an Australian bank account and during that time she failed to advise Centrelink that she had left Australia. She lived in the United States with her former partner, the father of her two children. The appellant provided Centrelink with the residential address of her sister in Australia. From 1995 until 2006 she had been almost continuously in receipt of social security benefits including job search allowance, carer payments, New Start allowance, parenting payments, and family tax benefits, when none of these should have been paid to her. Between those dates she was paid a total of $102,440.99 in Centrelink payments to which she was not entitled. Since being in receipt of the Centrelink benefits, the appellant purchased three residential properties located in Western Australia and South Australia. She failed to disclose those assets to Centrelink. Centrelink benefits were used in large part to meet the payment of mortgages. By the time she was sentenced the appellant repaid the entire amount which had been wrongly paid to her.

Ratio Decidendi

Legal Principle Established

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