Dowlat Soliman v The Queen - [2021] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0264

DOWLAT SOLIMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2021
DATE OF JUDGMENT:	8 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 8
JUDGMENT APPEALED FROM:	[2020] VCC 1898 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception – Misstating income to Commonwealth entity on 123 occasions – Total effective sentence of 20 months’ imprisonment – Recognisance release order after 5 months’ imprisonment – Whether manifestly excessive – Persistent offending over lengthy period – Sentence well within range – Leave refused – Criminal Code (Cth) s 134.2(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P A Chadwick QC	Ms Robyn Greensill
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
BEACH JA:

The applicant pleaded guilty to one charge of obtaining financial advantage by deception from a Commonwealth entity (‘Services Australia’).[1] Over the period March 2013–November 2017, the applicant was in receipt of Newstart allowance. During that period, she misstated her income on 123 occasions: on 51 occasions she made a false declaration of nil income and, on 72 occasions, a false under-declaration of income.
[1]Criminal Code (Cth) s 134.2(1).

The maximum penalty for the offence is 10 years’ imprisonment. The applicant was sentenced to 20 months’ imprisonment and the judge ordered that she be released on a recognisance release order in the sum of $1000 after having served 5 months’ imprisonment. She now seeks leave to appeal on the ground that the sentence is manifestly excessive.

For reasons which follow, we would refuse leave to appeal. Given the seriousness of the offending, and the applicant’s persistence in her deceptions after being questioned about the income declarations, the sentence was well within the range reasonably open to the judge. The contrary is not reasonably arguable.

The circumstances of the offending

During the offending period, the applicant received $67,853 in benefits when she was only entitled to receive $2,555. She was in continuous employment throughout the period of four and a half years. During that period, she earned $236,663, of which she declared only $22,126.

The offending was not voluntarily disclosed but was detected following an anonymous tipoff. In August 2016, following the tipoff, Services Australia contacted the applicant by telephone to discuss the allegation of understatement of income. During this conversation, the applicant said that her job provider had brought to her attention that she had not been declaring all of her earnings to Services Australia and had provided her with an overview on how to report her earnings correctly. She said that she now understood how to do so and was encouraged to contact Services Australia should she require assistance in the future.

Soon after this conversation, the applicant resumed her offending. She misstated her income on a further 30 occasions in the period to November 2017.

Subsequently, the Commonwealth sought…

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 Dowlat Soliman v The Queen

Details

AGLC: Dowlat Soliman v The Queen [2021] VSCA 8
Case: [2021] VSCA 8
Decision Date: 8 February 2021

CaseChat Overview and Summary

In the matter of Dowlat Soliman v The Queen, the appellant, Soliman, sought to appeal his sentence on the basis that it was manifestly excessive. Soliman had been convicted of obtaining financial advantage by deception through the misstatement of income to a Commonwealth entity on 123 occasions. The primary judge imposed a total effective sentence of 20 months' imprisonment, with a recognisance release order after five months' imprisonment. Soliman contended that the sentence was manifestly excessive, particularly given the length of time over which the offending occurred and the fact that he had previously been convicted of similar offences.

The court was required to determine whether the sentence imposed was manifestly excessive. The court considered the nature and extent of the offending, the appellant's criminal history, and the need for deterrence and denunciation. The court noted that the appellant's offending was persistent over a lengthy period, and that he had previously been convicted of similar offences. However, the court also noted that the sentence was well within the range of sentences that could have been imposed for the offences committed.

The court held that the sentence was not manifestly excessive. The court found that the sentence appropriately reflected the seriousness of the offending, and that it was necessary to provide deterrence and denunciation. The court further found that the sentence was proportionate to the appellant's offending, and that it was not excessive in light of the need to protect the community and uphold the rule of law. Leave to appeal was refused.

The court did not make any further orders.

Orders