R v Baker - [2019] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Baker
Citation:	[2019] ACTSC 316
Hearing Date:	4 September and 30 October 2019
DecisionDate:	30 October 2019
Before:	Murrell CJ
Decision:	See [51]–[52].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtain financial advantage by deception – Commonwealth offence – False declarations to Department of Human Services – Disability pension – Where the offender has no criminal record and strong prospects of rehabilitation – Intensive correction order – Reparation order.
Legislation Cited:	Crimes Act 1914 (Cth) pt IB, ss 4B(2), 16A, 21B Criminal Code 1995 (Cth) s 134.2(1)
Cases Cited:	Cameron v The Queen [2002] HCA 6; 209 CLR 339 Johnsson v R [2007] NSWCCA 192 Paynev The Queen [2010] WASCA 177 Swobodav Cobbo [2017] QDC 30 R v Hurst; Ex parte Commonwealth DPP [2005] QCA 25 R v Newton [2010] QCA 101; 199 A Crim R 288 R v Ruggiero (1998) 104 A Crim R 358 The Queen v Pham [2015] HCA 39; 256 CLR 550
Parties:	The Queen (Crown) Darlene Baker (Offender)
Representation:	Counsel H von Forell (Crown) S McLaughlin (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 159 of 2019

Murrell CJ:

The offender is to be sentenced for the offence that, between 31 July 2013 and 2 May 2018, she obtained a financial advantage by deception from the Department of Human Services, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).

The maximum penalty for this offence is 10 years’ imprisonment. Pursuant to s 4B(2) of the Crimes Act 1914 (Cth) (Crimes Act), the Court may impose a pecuniary penalty of 600 penalty units instead of, or in addition to, imprisonment.

Facts

From 2001, the offender began to receive the Disability Support Pension (the benefit) from the Commonwealth Department of Human Services (the Department).

She received the benefit for a back condition resulting from a serious motor vehicle accident that had occurred in 1996. The benefit was received from 2001 to about 2008. She ceased receiving the benefit for about four years before it was reinstated from approximately 2012.

The rate of benefit to which a recipient is entitled is affected by the recipient’s employment income. Ordinarily, recipients must report their employment income every fortnight. In addition, they have an ongoing legal obligation to report any change of circumstance that causes a variation in their income.

Between 31 July 2013 and 2 May 2018, the offender failed to correctly declare the amount of her employment income and made various false declarations to the Department. During this period, she earned a total gross income of $235,372.03 from employment with three employers. However, she declared only $59,061.01 to the Department.

Her employment was almost continuous. Between 5 July and 8 December 2013, she was employed by Baby Bunting as a casual sales assistant. Between 9 December 2013 and approximately June 2015, she was employed…

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 R v Baker

Details

AGLC: R v Baker [2019] ACTSC 316
Case: [2019] ACTSC 316
Decision Date: 30 October 2019

CaseChat Overview and Summary

The case of R v Baker arose from an offence committed by the respondent, who was convicted of obtaining a financial advantage by deception. The respondent was found to have falsely declared their circumstances to the Department of Human Services to obtain a disability pension. The matter was heard in the relevant court, where the sentencing phase was the focus of the proceedings. The legal issues that the court was required to address were primarily concerned with the appropriate sentence for the offence, taking into account the respondent's lack of a criminal record and their prospects for rehabilitation.

The court considered the seriousness of the offence and the need for punishment, deterrence, and rehabilitation. Given the respondent's lack of a criminal record and their prospects for rehabilitation, the court assessed whether an intensive correction order and a reparation order would be appropriate sentences. The court emphasised the importance of tailoring the sentence to the individual circumstances of the offender, ensuring that it would achieve the objectives of punishment, deterrence, and rehabilitation. The court ultimately determined that an intensive correction order, combined with a reparation order, would be suitable to address the offence while also promoting the respondent's rehabilitation.

The court found that an intensive correction order would provide the respondent with an opportunity to address the underlying causes of their offending behaviour and to develop skills that would reduce the likelihood of reoffending. Additionally, the reparation order would require the respondent to make amends for the harm caused by their actions. The court concluded that this approach would strike an appropriate balance between punishment, deterrence, and rehabilitation, taking into account the respondent's personal circumstances. The court's reasoning focused on the need to tailor the sentence to the individual offender and to consider the broader objectives of the criminal justice system.

The court ordered that the respondent be subject to an intensive correction order and a reparation order, with specific details provided in the judgment. The sentence was designed to address the respondent's offending behaviour while also promoting their rehabilitation and providing opportunities for making amends for the harm caused by their actions. The court's decision reflected a balanced approach to sentencing, taking into account the seriousness of the offence, the respondent's personal circumstances, and the broader objectives of the criminal justice system.

Orders

Orders of the court

See [51]–[52].

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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