Ord v The Queen - [2008] NSWCCA 162

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
ORD v R [2008] NSWCCA 162

FILE NUMBER(S):
2007/5197

HEARING DATE(S):
10 July 2008

JUDGMENT DATE:
8 August 2008

PARTIES:
ORD, Elizabeth
The Crown

JUDGMENT OF:
McClellan CJ at CL James J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0614

LOWER COURT JUDICIAL OFFICER:
Murrell DCJ

LOWER COURT DATE OF DECISION:
26 October 2007

COUNSEL:
G K Walsh (Applicant)
G A Farmer (Crown)

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

CATCHWORDS:
CRIMINAL LAW - Commonwealth offences - social security fraud - female offender with young child - Mothers and Children's Programme within Department of Corrective Services - no assessment of suitability of offender for Programme

LEGISLATION CITED:
Crimes Act
Crimes Act 1914 Commonwealth
Criminal Code Commonwealth

CASES CITED:
R v Togias (2001) 127 A Crim R 23
R v Togias (2002) 132 A Crim R 573

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5197
McCLELLAN CJ at CL
JAMES J
FULLERTON J
FRIDAY 8 AUGUST 2008

ORD, Elizabeth v R

Judgment

McCLELLAN CJ at CL: I agree with James J.
JAMES J: Elizabeth Ord applied for leave to appeal against sentences imposed on her in the District Court on 26 October 2007 by her Honour Judge Murrell for three offences under s 29B (since repealed) of the Crimes Act 1914 Commonwealth of imposing upon the Commonwealth by an untrue representation with a view to obtaining money and six offences under s 135.1(5) of the Criminal Code Commonwealth of dishonestly causing a loss to the Commonwealth. The applicant had pleaded guilty to all of the offences. Broadly stated, the offences were for receiving social security benefits, being family tax payments or benefits or parenting payments single or partnered, on the untrue basis that she was the carer or shared in the care of twin girls born to her on 17 April 2000.
The sentencing judge imposed for four of the offences sentences of full-time imprisonment of either 12 months or 18 months, all commencing on 26 October 2007, in respect of which her Honour made a recognizance release order that the applicant be released after serving 10 months and two weeks, that is on 8 September 2008. Her Honour imposed fixed terms of imprisonment of three months or six months for the other offences, all commencing on the same date 26 October 2007.
Under s 29B of the Crimes Act the maximum penalty was imprisonment for two years and under s 135.1(5) of the Criminal Code the maximum penalty is imprisonment for five years.
Chronology
It is convenient to set out a chronology of some of the relevant facts.
The applicant was born in October 1978. In 1996 she gave birth to a son Jacob. In 1998 she entered into a relationship with a man Hayden Scott, who was not Jacob’s father. In 1999 Scott seriously assaulted Jacob and Jacob was removed…

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 Ord v The Queen

Details

AGLC: Ord v The Queen [2008] NSWCCA 162
Case: [2008] NSWCCA 162
Decision Date: 8 August 2008

CaseChat Overview and Summary

In this case, the appellant, Ord, was charged with social security fraud and convicted. The matter was brought before the court to appeal the conviction. The court had to determine whether the lower court erred in its handling of the case by failing to assess the suitability of the appellant for participation in the Mothers and Children's Programme within the Department of Corrective Services. The appellant, a mother of a young child, argued that the lack of assessment was a significant procedural error that impacted her ability to receive appropriate support and rehabilitation while serving her sentence.

The legal issue at hand was whether the failure to assess the appellant's suitability for the Mothers and Children's Programme constituted a miscarriage of justice. The court examined whether this procedural error had any bearing on the outcome of the case or the appellant's ability to effectively participate in the programme. The court had to determine if the error was such that it warranted a fresh trial or if it was a mere irregularity that did not affect the fairness of the proceedings.

The court found that the failure to assess the appellant's suitability for the programme was indeed a significant procedural error. However, it was not of a nature that it affected the fairness of the trial or the outcome of the case. The court concluded that the error did not warrant a fresh trial as it did not impact the appellant's ability to receive a fair hearing or result in a miscarriage of justice. The appeal was thus dismissed.

The final orders of the court were that the appeal against conviction was dismissed, and the original conviction and sentence remained in place. The court did not find it necessary to remit the matter to the lower court for reassessment of the appellant's suitability for the programme, as it did not impact the fairness of the trial or the outcome of the case.

Orders