De Silva v The Queen

[2010] NSWDC 95

CITATION:	DE SILVA v R [2010] NSWDC 95
HEARING DATE(S):	26 May 2010
JUDGMENT DATE:	26 May 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The appeal is dismissed. The orders of the magistrate are confirmed.
CATCHWORDS:	CRIMINAL LAW - Judgment - Severity Appeal - Social Security fraud - Whether conviction appropriate
LEGISLATION CITED:	Commonwealth Criminal Code Property Stock and Business Agent's Act
PARTIES:	The Crown (Cth) Heidi De Silva
FILE NUMBER(S):	DC 2010/00021675
SOLICITORS:	Ford Criminal Lawyers - Appellant Director of Public Prosecutions (Cth) - Respondent

JUDGMENT

1 HIS HONOUR: I have before me an appeal by Ms Heidi De Silva against a sentence imposed in the Local Court upon her for five offences involving breaches of the Commonwealth Criminal Code in that she on five occasions obtained a financial advantage for herself from a Commonwealth entity to which she was not entitled.

2 These offences occurred some time ago. They concern a period of time when Ms De Silva was firstly obtaining Austudy payments and then obtaining Newstart payments. During that period she failed to tell Centrelink of income she was earning from a number of casual jobs. This led to her being overpaid a not insignificant amount, more than $7,000. The matter is only being dealt with some time after the offences were committed, because shortly after the offences were committed Ms De Silva went overseas for a number of years. Upon her return to Australia and after her son was born she applied for the baby bonus and at that stage she learnt that she was being prosecuted for these offences.

3 Ms De Silva is a woman of otherwise good character, apart from a speeding conviction which I will ignore. In particular she has committed no other offences of dishonesty. As well as that evidence of what she has not done there is also evidence of what she has done - doing a great deal of good work both here and in Indonesia helping others less fortunate than herself.

4 As Ms Nash accurately submitted, Ms De Silva has a number of brownie points that she is entitled to rely on when it comes to the appropriate sentence in this matter. Of particular importance is the circumstances that Ms De Silva’s husband is unable to work, having suffered an injury which prevents him carrying out the physical work that he did in the past. The evidence before me indicates that he is not going to get better and, if anything, he is going to get worse. This means that Ms De Silva is the sole breadwinner. On top of that she has, as I mentioned, a young son. She is the primary carer for her son, particularly in circumstances where her husband’s injury prevents him even picking her son up.

5 Ms De Silva has been taking bookings for a guesthouse in the Blue Mountains. She hopes to start her own business as an accommodation booking organisation, but to do that she requires a licence, a real estate licence. Unfortunately, the magistrate has imposed upon Ms De Silva a sentence which carries with it a conviction. A person is not eligible for a licence under the Property Stock and Business Agent’s Act if that person has a conviction in New South Wales or elsewhere for an offence involving dishonesty if it is recorded in the last ten years, unless the Director General has determined that the offence should be ignored. There is, thus, something of an uncertainty as to the consequences for Ms De Silva in the event that the conviction remains. It may be that the Director General would determine that the offence should be ignored, or it may be that the Director General would not. All that I can say is that there is not a blanket matter suggesting that a conviction would prevent Ms De Silva from being licensed, but there is certainly a substantial impediment in her way.

6 I am satisfied that she is remorseful for what she has done. I am satisfied that she is unlikely to re-offend in the future.

7 Ms Nash asked rhetorically what good would it do the community for Ms De Silva to remain convicted? Well the answer to that is of course that the principles of general deterrence remain of application in this case. In fact, they are of heightened importance in offences of this kind which are easy to commit. These were offences which were committed over a substantial period of time. They include offences of omission, where Ms De Silva failed to tell Centrelink when she should have told them, and co-omission when she told them things that were not true. The amount by which she was overpaid is not trivial, and there was a substantial period where she was committing offences of this kind.

8 There is nothing out of the ordinary unfortunately in the present case. When I say unfortunately, I mean unfortunate for Ms De Silva. Breadwinners often face conviction, even if usually those breadwinners are male, and the consequences of dishonesty do follow through for many years to those people. It is of course a matter in Ms De Silva’s favour that she repaid the amount in full, but the courts have to be very careful to ensure that there is no suggestion made that offenders are able to buy themselves out of trouble.

9 It is always a difficult matter to consider the sentence imposed upon a person who has committed offences some time ago and who now appears as a different person in court. Despite that, it remains the case that Ms De Silva must be punished for what she has done. It remains the case that other people must see that the courts treat very seriously offences of this kind. In my view, despite the possible adverse consequences for Ms De Silva, I am satisfied that the order made by the magistrate was appropriate and the appeal is dismissed. The orders of the magistrate are confirmed.

10 I will however say this in Ms De Silva’s favour. I mentioned before that there was a possibility that the Director General would determine that Ms De Silva’s offence should be ignored. It is of course not for me to tell the Director General what decisions should be made in that regard, but it is my recommendation that given the age of the offences, given Ms De Silva’s otherwise good character and given her remorse, that the offence should be ignored and she be allowed to carry on the occupation that she seeks.

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