Legal Research
Cases
DPP (Cth) v Parfrey

DPP (Cth) v Parfrey

Case [2010] VSCA 212 26 August 2010

Sentencing

Social Security Fraud

False Identity

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0010
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
KENNETH ALFRED PARFREY	Respondent

---

JUDGES:	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2010
DATE OF JUDGMENT:	26 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 212
JUDGMENT APPEALED FROM:	DPP (Cth) v Parfrey (Unreported, County Court of Victoria, Judge Allen, 11 December 2009)

---

SENTENCING – Crown appeal – Social security fraud – Use of false identity to receive overpayments totalling $202,633.57 over long period – Total effective sentence of three years’ imprisonment with immediate release on recognisance of $1000 – Whether manifestly inadequate – Significant mitigating factors – Mercy – Sentence reasonably open – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Mr D D Gurvich	Solicitor for Director of Public Prosecutions (Cth)
For the Respondent	Mr G J Thomas SC	Victoria Legal Aid

BONGIORNO JA:

I agree with Hansen JA that this appeal should be dismissed for the reasons his Honour has given.

HARPER JA:

I also agree with Hansen JA.

HANSEN JA:

This is an appeal by the Commonwealth Director of Public Prosecutions against sentences imposed in the County Court on 11 December 2009 which the Director contends were manifestly inadequate in the circumstances. The sentences were imposed on five counts of welfare fraud committed by the respondent, Kenneth Alfred Parfrey, between June 1983 and April 1987 and then from May 1989 to February 2006.

Counts 1 to 3 alleged the receipt of benefit from the Department of Social Security, and count 5 from Centrelink, in the false name of James Johnston. Counts 1, 2 and 3 concerned the receipt of Unemployment Benefit in the false name of James Johnston while the respondent was either employed or receiving workers’ compensation in his true name, between 30 June 1983 and 22 April 1987. The three counts relate to a single chain of conduct but were separately charged because of legislative changes. Count 1 charged the offence of imposing, under s 29B of the Crimes Act 1914 (Cth), upon the Department by means of a false representation that he was not employed with a view to obtaining payment of Unemployment Benefit in the name of James Johnston, when he was employed and receiving income in his own name. Counts 2 and 3 each charged the offence, contrary to s 29D of the Crimes Act, of defrauding the Department by obtaining Unemployment Benefit in the name

of James Johnston, while concealing from the Commonwealth that he was receiving workers’ compensation payments in his true name. The amounts involved in these counts were: count 1 – $4,196.30, count 2 – $7,521.94 and count 3 – $4,159.56. It was conceded by the Crown on the plea that it was open to the judge to impose an aggregate sentence in relation to counts 1, 2 and 3 on the basis that they represented one continuing course of conduct.

Counts 4 and 5…

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 DPP (Cth) v Parfrey

Details

AGLC: and Director of Public Prosecutions (Cth) v Kenneth Alfred Parfrey [2010] VSCA 212
Case: [2010] VSCA 212
Decision Date: 26 August 2010

CaseChat Overview and Summary

The matter between the Director of Public Prosecutions (Commonwealth) and Parfrey came before the court for a consideration of the sentence imposed on Parfrey for social security fraud. Parfrey had used a false identity to receive overpayments of over $202,000 over a prolonged period. The court imposed a sentence of three years' imprisonment, with immediate release on recognisance of $1000. The Commonwealth sought an appeal on the basis that the sentence was manifestly inadequate.

The central issue for the court was whether the sentence was manifestly inadequate. The court considered whether there were significant mitigating factors and whether mercy should be exercised. The Commonwealth argued that the sentence was manifestly inadequate, while Parfrey argued that the sentence was reasonably open to the trial judge.

The court held that the sentence was reasonably open to the trial judge. The court acknowledged that there were significant mitigating factors, including Parfrey's guilty plea, remorse, and the fact that he had repaid the overpayments. The court also noted that Parfrey had no previous convictions and had suffered significant personal difficulties. The court held that the sentence of three years' imprisonment, with immediate release on recognisance of $1000, was reasonably open to the trial judge. The appeal was dismissed.

Orders