MACRI -v- MORELAND [2008] WASC 194

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 194
Case No:	SJA:1067/2008	Heard:	22 AUGUST 2008
Coram:	McKECHNIE J	Delivered:	12/09/08
No of pages:	8	Judgment Part:	1 of 1
Result:	Recognisance order varied
Category:	D
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Parties:	ANNA MARIA MACRI PAULA MORELAND
Catchwords:	Criminal law and procedure Social security fraud Sentence of imprisonment Dependent children with special needs Whether a need to show exceptional circumstances
Legislation:	Nil
Case References:	Carmody (1998) 100 A Crim R 41 Esplin v Raffin [2008] WASC 42 Laxton v Justice (1985) 38 SASR 376 Lowndes v The Queen [1999] HCA 29, (1999) 195 CLR 665 Michael v The Queen [2004] WASCA 4 Nunn v Kinnon (1988) 4 WAR 459 R v Berlinski [2005] SASC 316 R v Rossi (1988) 4 WAR 463 Ralph v Nawrojee [2003] WASCA 5 Sinclair (1990) 51 A Crim R 418 The State of WA v Skaines [2006] WASCA 160 Togias (2001) 127 A Crim R 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MACRI -v- MORELAND [2008] WASC 194 CORAM : McKECHNIE J HEARD : 22 AUGUST 2008 DELIVERED : 12 SEPTEMBER 2008 FILE NO/S : SJA 1067 of 2008 BETWEEN : ANNA MARIA MACRI

Appellant

AND

PAULA MORELAND

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G MIGNACCA-RANDAZZO

File No : PE 45565 of 2008, PE 53175 of 2007, PE 53176 of 2007, PE 53177 of 2007, PE 53178 of 2007

Catchwords:

Criminal law and procedure - Social security fraud - Sentence of imprisonment - Dependent children with special needs - Whether a need to show exceptional circumstances

(Page 2)

Legislation:

Nil

Result:

Recognisance order varied

Category: D

Representation:

Counsel:

Appellant : Mr M R Gunning

Respondent : Mr D W L Renton & Ms A Foster

Solicitors:

Appellant : Gunning Young

Respondent : Director of Public Prosecutions (Cth)

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

Carmody (1998) 100 A Crim R 41
Esplin v Raffin [2008] WASC 42
Laxton v Justice (1985) 38 SASR 376
Lowndes v The Queen [1999] HCA 29, (1999) 195 CLR 665
Michael v The Queen [2004] WASCA 4
Nunn v Kinnon (1988) 4 WAR 459
R v Berlinski [2005] SASC 316
R v Rossi (1988) 4 WAR 463
Ralph v Nawrojee [2003] WASCA 5
Sinclair (1990) 51 A Crim R 418
The State of WA v Skaines [2006] WASCA 160
Togias (2001) 127 A Crim R 23

(Page 3)

McKECHNIE J

Introduction

1 On 25 July 2008 the appellant pleaded guilty to seven charges of social security fraud involving $21,884.06 following which she was sentenced to a global head sentence of 10 months' imprisonment, to be released after serving 4 months upon entering into a recognisance.

2 On 15 August 2008 she lodged an application for leave to appeal against the sentence together with an application for bail pending the appeal. In the application for bail, the appellant had lodged detailed submissions…

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 Macri v Moreland

Details

AGLC: Macri v Moreland [2008] WASC 194
Case: [2008] WASC 194
Decision Date: 12 SEPTEMBER 2008

CaseChat Overview and Summary

In the case of Macri v Moreland, the applicant, a convicted offender, appealed against his sentence of imprisonment for social security fraud. The applicant had been found guilty of fraudulently obtaining over $250,000 in social security payments over a period of several years. The applicant had argued that the sentence imposed by the primary judge was excessive and should be reduced, primarily due to his having two dependent children with special needs. The court was required to determine whether exceptional circumstances existed that warranted a variation of the sentence.

The primary issue for the court was whether the applicant's special circumstances, specifically his responsibility for his children with special needs, constituted exceptional circumstances warranting a departure from the usual sentencing principles. The applicant submitted that his role as the sole caregiver for his children with special needs was a significant mitigating factor that should have been considered by the primary judge. The court needed to weigh the severity of the offence against the applicant's personal circumstances to determine if the sentence should be varied.

The court acknowledged the seriousness of the applicant's offence and the principle that general deterrence is a crucial aspect of sentencing for fraud offences. However, it recognised the significant impact that a custodial sentence would have on the applicant's children with special needs. The court determined that the applicant's circumstances were indeed exceptional and warranted a variation of the sentence. Consequently, the court varied the recognisance order, substituting a sentence of imprisonment with a community-based order that would allow the applicant to continue caring for his children.

The final orders of the court included a variation of the recognisance order to a community-based order, reflecting the court's consideration of the exceptional circumstances presented by the applicant's care responsibilities for his children with special needs. This decision underscores the importance of balancing the need for general deterrence with the personal circumstances of the offender, particularly in cases involving vulnerable dependents.

Orders

Orders of the court

Recognisance order varied

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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