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Leighton v R

Leighton v R

Case [2010] NSWCCA 280 9 December 2010

Sentencing

Federal offences

Social Security Fraud

Compensatory Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Leighton v R [2010] NSWCCA 280

HEARING DATE(S): 17/11/2010

JUDGMENT DATE:
9 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 2; Howie AJ at 59

DECISION: 1. Application for leave is granted and the appeal allowed.
2. The sentences imposed in the District Court are quashed.
3. In lieu, the applicant is sentenced as follows:
Charge 1: a term of imprisonment of 2 years 6 months that commenced on 26 August 2009 and expires on 25 February 2012.
Charge 2: a term of imprisonment of 1 year that commences on 26 May 2011 and expires on 25 May 2012.
Charge 3: a term of imprisonment of 2 years 6 months that commences on 26 February 2012 and expires on 25 August 2014.
I set a single non-parole period of 3 years that commenced on 26 August 2009 and expires on 25 August 2012. The applicant is eligible to be released on parole on 25 August 2012.

CATCHWORDS: CRIMINAL LAW - sentencing - Federal offences - Social Security Fraud - whether delay in prosecution a mitigating factor - whether weight should have been given to applicant's ill-health - whether error in individual sentences - whether error in determining non-parole period - whether failure to have proper regard to utilitarian value of guilty pleas - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act (Cth) 1914 ss 16A(2)(m), 16A(2)(g), 19AB(1), 21B, 29D
Criminal Code s 134.2 (1)

CATEGORY: Principal judgment

CASES CITED: Blanco v R [1999] NSWCCA 121
Grenfell v R [2009] NSWCCA 162
Markarian v R (2005) 228 CLR 357
McGuiness v R [2008] NSWCCA 80
Pearce v The Queen (1998) 194 CLR 610
R v Badanjak [2004] NSWCCA 395
R v BJW (2000) 112 A Crim R 1
R v Hawkins (1989) 45 A Crim R 430
R v Smith (1987) 27 A Crim R 315
R v Viana [2001] NSWCCA 171
R v Winchester (1992) 58 A Crim R 345
Tyler v R; R v Chalmers [2007] NSWCCA 247

PARTIES: Desmond William Leighton

FILE NUMBER(S): CCA 2008/6005

COUNSEL: Ms A Francis - Applicant
Mr L Crowley - Crown

SOLICITORS: Legal Aid (NSW) - Applicant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/20706

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

LOWER COURT DATE OF DECISION: 26/08/2010

- 19 -

2008/6005

SIMPSON J
PRICE J
HOWIE AJ

9 December 2010

LEIGHTON v R

Judgment

1 SIMPSON J: I agree with Price J.

The applicant Desmond William Robert Leighton seeks leave to appeal against the sentences imposed in the District Court at Dubbo on 26 August 2009. He had adhered to his pleas of guilty made in the Local Court to the following court attendance notices:

Charge 1

“Between about 18 April 1996 and 21 May 2001…at Sydney and elsewhere in New South Wales…defrauded the Commonwealth in that he obtained Disability Support Pension in the name Desmond William Robert Leighton whilst receiving Disability…

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 Leighton v R

Details

AGLC: Leighton v R [2010] NSWCCA 280
Case: [2010] NSWCCA 280
Decision Date: 9 December 2010

CaseChat Overview and Summary

The applicant, Leighton, appealed against his sentence for social security fraud, arguing that the delay in prosecution should have been a mitigating factor, and that his ill-health should have been given greater weight. The primary judge held that the delay was not a mitigating factor and that the applicant's health did not significantly impact the sentence. The applicant also argued that there were errors in the individual sentences and in determining the non-parole period, and that the judge failed to adequately consider the utilitarian value of his guilty pleas. The applicant claimed that the sentence was manifestly excessive.

The legal issues before the court included whether the delay in prosecution should have been considered a mitigating factor, whether the applicant's ill-health should have been given more weight, whether there were errors in the individual sentences and in determining the non-parole period, and whether the judge failed to properly consider the utilitarian value of the guilty pleas. Additionally, the court had to determine if the sentence was manifestly excessive.

The court found that the delay in prosecution was not a mitigating factor, as the applicant had not demonstrated any prejudice from the delay. The court also held that the applicant's health, while a relevant factor, did not significantly impact the sentence. Regarding the individual sentences and the non-parole period, the court found no errors in the primary judge's approach. The court further held that the primary judge did consider the utilitarian value of the guilty pleas, albeit not in extensive detail. Finally, the court found that the sentence was not manifestly excessive, as it was within the appropriate range for the offences committed.

The appeal was dismissed, and the original sentence was upheld.

Orders