Criminal law - Sentencing - Offender pleaded guilty to one count of defrauding and one count of engaging in conduct with the intention of defrauding Centrelink - Total effective sentence of 18 months' immediate imprisonment - Appeal by offender against sentence - Delay in commencing prosecution - Totality - Turns on own facts

Legislation:

Criminal Code (Cth), s 134.2(1), s 135.1(1)

Result:

Leave to appeal on ground 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J B Prior
Respondent: Mr D W L Renton & Mr O J Paxman

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (Cth)

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

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Cameron (1993) 171 LSJS 305
Ralph v Nawrojee [2003] WASCA 5
Scook v The Queen [2008] WASCA 114
The State of Western Australia v Fleming [2010] WASCA 162

McLURE P: I agree with Buss JA.
BUSS JA: The appellant was charged, by prosecution notice dated 24 August 2009, with:
(a)one count of dishonestly obtaining a financial advantage from Centrelink by deception, contrary to s 134.2(1) of the Criminal Code (Cth) (Code) (count 1); and
(b)one count of engaging in conduct with the intention of dishonestly obtaining a gain from Centrelink, contrary to s 135.1(1) of the Code (count 2).
On 6 November 2009, the appellant entered fast‑track pleas of guilty in the Perth Magistrates Court. On 29 January 2010, she entered pleas of guilty in the District Court.
Keen DCJ sentenced the appellant, on count 1, to 12 months' imprisonment and, on count 2, to 6 months' imprisonment. His Honour ordered that the sentence for count 2 be served cumulatively on the sentence for count 1. The total effective sentence was therefore 18 months' imprisonment. His Honour ordered that the appellant be released after serving 9 months, upon entering into a recognisance in the amount of $3,000 to be of good behaviour for a further 9 months.
The appellant appeals to this court against the sentencing decision.

The background facts and circumstances

The background facts and circumstances were not in dispute.
The offences related to the payment by Centrelink to the appellant of a parenting payment (single), and the payment by Centrelink to her of amounts, in the total sum of $50,754.98, to which she was not entitled.
A parenting payment (single) provides income support for single persons…

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 Payne v The Queen

Details

AGLC: Payne v The Queen [2010] WASCA 177
Case: [2010] WASCA 177
Decision Date: 9 SEPTEMBER 2010

CaseChat Overview and Summary

In the case of Payne v The Queen, the offender, Payne, appealed against the sentence imposed on him by the lower court. Payne had pleaded guilty to one count of defrauding and one count of engaging in conduct with the intention of defrauding CentreLink. The sentence imposed was 18 months' immediate imprisonment. The appeal focused on the sentence, particularly the delay in commencing the prosecution and the consideration of the totality of Payne's circumstances.

The primary legal issues the court was required to decide were whether the delay in prosecution was significant enough to warrant a reduction in sentence and whether the totality of Payne's circumstances warranted a sentence less severe than the 18 months' immediate imprisonment imposed. The court had to consider the principles of sentencing, including the need for deterrence and the rehabilitation of the offender, alongside the specific facts and circumstances of Payne's case.

The court examined the factors relevant to sentencing, including the delay in prosecution and the totality of Payne's circumstances. The court found that while the delay did play a role, it did not significantly impact the overall sentence. The court also considered Payne's personal circumstances, but ultimately determined that they did not warrant a substantial reduction in sentence. The appeal was dismissed, and the original sentence of 18 months' immediate imprisonment was upheld.

The final orders of the court were that Payne's appeal against sentence was dismissed, and the sentence of 18 months' immediate imprisonment was upheld. The court emphasised that while the delay in prosecution and the totality of Payne's circumstances were relevant, they did not warrant a significant reduction in the sentence imposed.

Orders