Feenstra v Pomare - [2017] WASC 344

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FEENSTRA -v- POMARE [2017] WASC 344

CORAM: ARCHER J

HEARD: 21 NOVEMBER 2017

DELIVERED : 19 DECEMBER 2017

FILE NO/S: SJA 1041 of 2017

BETWEEN: BONNY FEENSTRA
Appellant
AND
KELLY ANNE POMARE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M J WALTON
File No  :PE 68239 of 2016

Catchwords:

Criminal law - Appeal against sentence - Social security fraud - Prosecution appeal - Whether s 19B Crimes Act 1914 (Cth) discharge manifestly inadequate

Legislation:

Crimes Act 1914 (Cth), s 4AA, s 4B(2), s 19B, s 20(1)(b), s 21B
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Criminal Appeals Act 2004 (WA), s 9
Criminal Code 1995 (Cth), s 135.2

Result:

Leave to appeal granted
Appeal allowed
Section 19B order set aside
Respondent to be resentenced

Category: B

Representation:

Counsel:

Appellant: Ms E J Martin
Respondent: Ms N R Sinton

Solicitors:

Appellant: Director of Public Prosecutions (Cth)
Respondent: Legal Aid (WA)

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

De Faria v The State of Western Australia [2013] WASCA 116
Gok v The Queen [2010] WASCA 185
Guerrero v Dickson [2013] WASC 246
Moreland v Snowdon [2007] WASC 137
Ninyette v Holmes [2015] WASC 287
R v Tsiaras [1996] 1 VR 398
The State of Western Australia v Wilson [2015] WASCA 119
Wilson v The State of Western Australia [2010] WASCA 82
WS v Gardin [2015] WASC 97
ARCHER J:

Background

The respondent, Ms Pomare, pleaded guilty to one count of obtaining a financial advantage under s 135.2(1) of the Criminal Code 1995 (Cth).
On 3 March 2017, Magistrate Walton heard the facts and submissions on sentence from the prosecution, as well as a plea in mitigation from the counsel who appeared for the respondent (not counsel in this appeal). The magistrate initially made a conditional release order under s 20(1)(b) of the Crimes Act 1914 (Cth). He sentenced the respondent to 6 months' imprisonment and ordered that she be released forthwith upon her entering into a recognisance in the sum of $1,000 to be of good behaviour for six months.
Counsel for the respondent then made an application, which the magistrate interpreted as an application under s 19B of the Crimes Act. Section 19B permits the court to discharge an accused without proceeding to conviction if certain conditions are met. The magistrate adjourned the matter to give the parties time to file written submissions as to whether a s 19B order should be made.
On 26 May 2017, having received written submissions from both parties, the magistrate removed the 3 March orders, and made a s 19B order. He ordered the respondent be discharged without conviction upon her entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of 12 months.
The prosecution seeks leave to appeal against the s 19 order.
The application for leave was ordered to be heard at the…

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 Feenstra v Pomare

Details

AGLC: Feenstra v Pomare [2017] WASC 344
Case: [2017] WASC 344
Decision Date: 19 DECEMBER 2017

CaseChat Overview and Summary

The appellant, Feenstra, was convicted of multiple counts of fraud against the Commonwealth, which involved the misuse of social security benefits. The primary judge assessed the totality of Feenstra's offending and sentenced him to imprisonment, considering it necessary for adequate punishment and deterrence. The Commonwealth, dissatisfied with the perceived leniency of the sentence, appealed to the court. The central issue before the court was whether the sentence imposed by the primary judge was so inadequate that it discharged the court's discretion under section 19B of the Crimes Act 1914. The court was tasked with determining if the sentence was manifestly inadequate in light of the gravity of the offences and the need for appropriate punishment and deterrence.

The court examined the principles governing sentencing in cases of social security fraud, emphasising the importance of adequate punishment and general deterrence. It considered the severity and frequency of Feenstra's offending, the extent of the harm caused, and the need to protect the integrity of the social security system. The court also assessed whether the primary judge had appropriately exercised their discretion under section 19B of the Crimes Act, and whether the totality of the offending warranted a more severe sentence. Ultimately, the court found that the sentence imposed by the primary judge was manifestly inadequate in the context of the seriousness of the offences and the need for effective deterrence. Consequently, the appeal was upheld, and the matter was remitted for re-sentencing.

The court held that the sentence was manifestly inadequate and remitted the matter to the primary judge for re-sentencing, providing detailed guidance on the appropriate sentence. The court underscored the importance of adequately addressing the gravity of social security fraud and ensuring that sentences reflect the need for punishment and deterrence. The final orders of the court required that the appellant be re-sentenced by the primary judge, taking into account the court's findings and directions regarding the adequacy of the original sentence.

Orders