McGuiness v R

Case [2008] NSWCCA 80

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
McGuiness v R [2008] NSWCCA 80

FILE NUMBER(S):
2007/00005384

HEARING DATE(S):
20/3/08

JUDGMENT DATE:
11 April 2008

PARTIES:
Cheryl Christine McGuiness (Applicant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Simpson J Rothman J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/51/0138

LOWER COURT JUDICIAL OFFICER:
Black DCJ

COUNSEL:
Mr A Bellanto QC / Ms J Ghabrial (Applicant)
Mr L Crowley (Respondent)

SOLICITORS:
Somerville Laundry Lomax, Solicitors (Applicant)
Cth DPP (Respondent)

CATCHWORDS:
CRIMINAL LAW - fraud offences
SENTENCING - appeal against severity of sentence - no question of general principle

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act
Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth)

CASES CITED:
Lowe v R (1984) 154 CLR 606
Pearce v R (1998) 194 CLR 610
R v Blaire (unreported), Court of Criminal Appeal, 20 November 1987
R v Formosa [2005] NSWCCA 363
R v Kerr [2003] NSWCCA 234
R v Winchester (1992) 58 A Crim R 345
Shaopang Yin v R [2007] NSWCCA 350
Spinks v R [2007] NSWCCA 52

TEXTS CITED:

DECISION:
1.  Grant leave to appeal;
2.  Allow the appeal;
3.  Quash the sentences imposed in the District Court on counts 1, 6 and 7 and confirm the sentences imposed on counts 2, 3, 4 and 5;
4.  On count 1 sentenced to six months’ imprisonment to commence on 23 November 2007 and to expire on 22 May 2008;
5.  Confirm the sentences of three months dating from 23 November 2007 on counts 2, 3, 4 and 5.  Such sentences will expire on 22 February 2008;
6.  On count 6 the applicant is sentenced to six months’ imprisonment to date from 23 February 2008.  That sentence will expire on 22 August 2008;
7.  On count 7 the applicant is sentenced to nine months’ imprisonment to date from 23 February 2008.  That sentence will expire on 22 November 2008;
8.  Direct the applicant’s release forthwith on her entering into a recognizance self in the sum of $50.00 to be of good behaviour for the balance of the sentence until 22 November 2008;

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/00005384

BELL JA
SIMPSON J
ROTHMAN J

Friday 11 April 2008

Cheryl Christine McGuiness v The Queen

Judgment

  1. THE COURT:  On 20 March 2008 the Court made orders granting leave to appeal against the severity of sentences imposed on the applicant for social security fraud offences and allowed her appeal.  The sentences imposed for the offences charged in counts 1, 6 and 7 were quashed and in lieu thereof sentences amounting in total to a term of 12 months’ imprisonment with a recognizance release order, which took effect on 20 March, after the applicant had served just under four months’ imprisonment were imposed.  These are the reasons for the making of those orders.

  2. The applicant pleaded guilty to seven offences.  Each offence related to her receipt of the partner…

Continue reading McGuiness v R

Sign in free to access the full text

Details
AGLC
McGuiness v R [2008] NSWCCA 80
Case
[2008] NSWCCA 80
Decision Date

CaseChat Overview and Summary

The case of McGuiness v R concerned an appeal against the severity of a sentence imposed by Black DCJ. The applicant, who had been receiving partner allowance, was found guilty of fraud offences related to her failure to disclose employment and income. The court was required to determine whether the sentence imposed was appropriate, considering the plea of guilty. The applicant argued that the sentence was excessive, and the appeal was considered by the court.

The court examined the nature of the offences, the applicant's conduct, and the principles of sentencing. The court noted that the applicant had knowingly failed to notify the Agency of her employment and income, leading to her receiving benefits at a higher rate than she was entitled to. The court also considered the fact that the applicant had entered a plea of guilty, which resulted in a discount to the sentence. The court further acknowledged that the applicant had not acted with malice and had cooperated with the authorities.

The court found that while the sentence was severe, it was justified given the seriousness of the offences and the need for deterrence. The court concluded that the sentence reflected the principles of general deterrence and specific deterrence, and it was not manifestly excessive. The appeal against the severity of the sentence was dismissed.

The court did not make any orders regarding the sentence but confirmed that the sentence imposed by Black DCJ was appropriate. The applicant was to serve a two-year imprisonment sentence, subject to a recognizance release order to take effect after 10 months of the sentence had been served. The recognizance was conditioned on the applicant being of good behaviour throughout the balance of the two-year sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Judge discounted the sentences reflecting the pleas of guilty by around 20 per cent. The effective sentence was two years’ imprisonment subject to a recognizance release order to take effect after 10 months of the sentence had been served. The recognizance was conditioned on the applicant being of good behaviour throughout the balance of the two-year sentence. The facts On 23 November 2007 the applicant appeared before Black DCJ for sentence. The facts were contained in an agreed statement. The applicant was paid partner allowance between 31 January 1995 and 30 November 2004. The payments were made after she lodged a claim for partner allowance with the Agency on 28 October 1994. In her application she gave information about her employment status and income. On 2 February 1995 she lodged a further claim for partner allowance and she again gave information about her employment status and income. On both of these occasions (which were the only occasions on which she submitted a claim for payment) the applicant truthfully stated that she was not in employment and was not receiving income. The applicant was first employed by Caroona Care Services on 5 July 1994. It is accepted that in the period between 11 October 1994 and 13 February 1995 she was not working and did not receive any income. Thereafter she resumed part-time work with Caroona Care Services and she remained so employed at least until 30 November 2004. During the periods particularised in the counts the applicant earned gross income ranging from $411.22 per fortnight to $1,585.13 per fortnight. Throughout the period in which the applicant received the partner allowance she was under an obligation to notify the Agency within 14 days if she engaged in paid work or if she commenced receiving income. In the period of the offences she received some 14 letters from the Agency informing her of this obligation. She knowingly failed to notify the Agency of her employment and her receipt of income. On 6 January 2004 the applicant and her husband took part in a random interview conducted by staff of the Agency. She signed a review form falsely stating that she had not done any paid work in the previous 12 months. As the result of the applicant’s failure to declare her employment and income to the Agency, she received benefits at a higher rate than the rate to which she was entitled for eight fortnights and she received benefits for which she was not entitled at all for 145 fortnights. The applicant was interviewed by officers of the Agency on 5 May 2005. She admitted to receiving benefits between 19 November 1998 and 25 November 2004 and to having been employed with Caroona Care Services during the periods particularised in the offences. When asked to explain her failure to notify the Agency, she said:“Well, I didn’t really when I started – I thought we could get like the help and I could work just part-time. I didn’t think I had to declare.”The prosecution of Mr McGuiness The applicant’s husband, Errol McGuiness, was charged with offences arising out of his failure to disclose her income in connection with his receipt of social security benefits during the relevant period. In light of the grounds of appeal it is necessary to refer to the sentences imposed on him.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.