JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JORISSEN -v- THE QUEEN [2017] WASCA 71
CORAM: MITCHELL JA
HALL J
HEARD: 11 APRIL 2017
DELIVERED : 11 APRIL 2017
PUBLISHED : 11 APRIL 2017
FILE NO/S: CACR 167 of 2016
BETWEEN: GERARDUS JOHANNES HERMANUS JORISSEN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 1564 of 2015
Catchwords:
Criminal law - Appeal against sentence - One count of defrauding the Commonwealth and two counts of making a false statement to a Commonwealth entity with the intention of dishonestly obtaining a gain from the Commonwealth - Whether total effective sentence of 2 years' immediate imprisonment unjust - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms E J Martin
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Anderson v Western Australia [No 3] [2014] WASCA 190
De Faria v The State of Western Australia [2013] WASCA 116
R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124
R v Sinclair (1990) 51 A Crim R 418
JUDGMENT OF THE COURT: The appellant was convicted after trial in the District Court of one count of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) and two counts of making a false statement to a Commonwealth entity with the intention of dishonestly obtaining a gain from the Commonwealth contrary to s 135.1(1) of the Criminal Code (Cth).
The offences related to an 11‑year period between 21 September 1999 and 10 June 2011. During this period, the appellant submitted forms to the Commonwealth Service Delivery agency (Centrelink) in relation to Newstart Allowance, and later the aged pension, in which he failed to declare income from self‑employment. The total amount defrauded was $84,459.
On 7 October 2016, the appellant was sentenced to a total effective sentence of 2 years' imprisonment. The sentences on the individual counts were 6 months' imprisonment on count 1, 1 year 1 month on count 2 and 11 months on count 3. The sentences on counts 2 and 3 were ordered to be served cumulatively and the sentence on count 1 was ordered to be concurrent. An order was also made that the appellant was to be released after serving 12 months' imprisonment on entering into a recognisance in the sum of $1,000 to be of good behaviour for the balance of the 2‑year term.
The appellant seeks leave to appeal against his sentence. There are five grounds of appeal, which in essence assert that the total sentence imposed was unjust. He submits that the sentence is excessive having regard to his age and personal circumstances, the impact of his imprisonment on his wife and that the offending commenced as a result of the financial impact of a natural disaster.
The facts
The facts as…
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- Case
- [2017] WASCA 71
- Decision Date
CaseChat Overview and Summary
The court had to consider whether the total effective sentence of two years' imprisonment was appropriate given the appellant's age, personal circumstances, and the impact on his family. The appellant argued that the sentence was excessive and unjust, particularly as it would result in him serving 12 months in custody and the remaining year on a recognisance. The court weighed the severity of the offence against the appellant's personal circumstances, including the financial impact of a natural disaster that led to his initial loss of income and subsequent fraudulent behaviour. The court also considered the impact of the sentence on the appellant's family, specifically his wife.
The High Court found that the sentence was not unjust. The court acknowledged the appellant's personal circumstances but emphasised the gravity of the fraud, which spanned over a decade and resulted in significant financial gain to the appellant. The court concluded that the sentence imposed was proportionate to the seriousness of the offences, taking into account the appellant's age, personal circumstances, and the impact on his family. The appeal was dismissed, and the original sentence was upheld.
Orders
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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
Ratio Decidendi
Legal Principle Established
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