Jorissen v The Queen - [2017] WASCA 71

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…

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.

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Details

Case: [2017] WASCA 71
Decision Date: 11 APRIL 2017

CaseChat Overview and Summary

The appellant, Jorissen, appeals against his sentence of two years' imprisonment for defrauding the Commonwealth by making false statements to Centrelink, seeking to argue that the total effective sentence was unjust. The appeal was heard in the High Court of Australia, which was asked to determine whether the sentence was excessive in light of the appellant's personal circumstances and the impact on his family. The appellant's conviction was for 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. The offences occurred over an 11-year period, during which the appellant received benefits to which he was not entitled, totaling $84,459.

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

Orders of the court

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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

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 as found by the sentencing judge are as follows. In 1999, the appellant was living and operating a business in Moora. Flooding in that year caused extensive damage to the town and resulted in the appellant losing his business. He then applied to Centrelink for Newstart Allowance. In doing so he failed to declare to Centrelink that he continued to be self‑employed, providing roadside assistance as a contractor to the RAC. The application form and subsequent review forms that the appellant was required to complete contained questions regarding whether he was employed and had any other sources of income or earnings. Review forms were completed at intervals of between two and 12 weeks. The appellant repeatedly stated that he had no employment of any kind and no other source of income and falsely declared the contents of the form to be true. Had the appellant declared his income he would have received a reduced amount of benefits. Between 21 September 1999 and 23 May 2001, the appellant received a total of $7,022 in Newstart Allowance to which he was not entitled (count 1). Between 24 May 2001 and 12 January 2007 the appellant received a total of $45,299 in Newstart Allowance to which he was not entitled (count 2). In late 2006, the appellant made an application for the transfer of benefits to the aged pension. Once again he was asked whether he had undertaken any employment and had any sources of income. He again falsely declared that he did not. As a consequence, between 13 January 2007 and 10 June 2011 he received a total of $32,138 in aged pension to which he was not entitled (count 3). As earlier noted, the total amount defrauded was $84,459.

Ratio Decidendi

Legal Principle Established

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