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R v Brewer

R v Brewer

Case [2004] ACTCA 10 1 June 2004

Statutory Interpretation

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THE QUEEN v PATRICIA ANNE BREWER
[2004] ACTCA 10 (1 June 2004)

CRIMINAL LAW – appeals – Crown appeal against sentence – Social Security fraud – benefits claimed in two names – whether sentences manifestly inadequate – whether sentences ought to have been wholly suspended.

Supreme Court Act 1933, s 37E

Periodic Detention Act1995, s 6

Crimes Act 1900, s 6

Rehabilitation of Offenders (Interim) Act 2001

House v The King (1936) 55 CLR 499

The Queen v Tait (1979) 46 FLR 386

R v Lappas [2003] ACTCA 21 (2003) 152 ACTR 7

R v Van Tung Luu (unreported, NSW Court of Appeal, 7 December 1984)

R v David Fernanda Medina (unreported, NSW Court of Appeal, 28 May 1990)

Kenneth Raymond Mears (1991) 53 A Crim R 141 at 145

R v Purdon (unreported, NSW Court of Appeal, 27 March 1997)

Kovacevic v R [2000] SASC 106, (2000) 111 A Crim R 131

Cruse v Treminio [2001] ACTSC 59

Dinsdale v The Queen (2002) 202 CLR 321

R v Cobb (1999) 84 FCR 450

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No ACTCA 48-2003
No SCC 100 of 2003

Judges: Gray, Connolly and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date: 1 June 2004

IN THE SUPREME COURT OF THE       )
  )          No ACTCA 48-2003
AUSTRALIAN CAPITAL TERRITORY    )          No SCC 100 of 2000

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:PATRICIA ANNE BREWER
Respondent

ORDER

Judges:  Gray, Connolly and Gyles JJ
Date:  1 June 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The orders of the Supreme Court be set aside and in lieu thereof the respondent be sentenced to two years imprisonment, but after serving six months be released upon a recognizance self in the sum of $500 to be of good behaviour for a period of three years.

IN THE SUPREME COURT OF THE       )
  )          No ACTCA 48-2003
AUSTRALIAN CAPITAL TERRITORY    )          No SCC 100 of 2000

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:PATRICIA ANNE BREWER
Respondent

Judges:  Gray, Connolly and Gyles JJ
Date:  1 June 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by the Crown against what is said to be the manifest inadequacy of a sentence imposed on the respondent on 21 November 2003. The respondent was convicted of two counts of defrauding the Commonwealth and one count of general dishonesty causing risk of loss. She was sentenced to 12 months imprisonment on each of the first two counts, to be served concurrently, and to 12 months imprisonment on the third count, to be served cumulatively, making an effective head sentence of two years imprisonment that was fully suspended upon the respondent entering into a recognizance to be of good behaviour for a period of three…

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 Brewer

Details

AGLC: R v Brewer [2004] ACTCA 10
Case: [2004] ACTCA 10
Decision Date

CaseChat Overview and Summary

The Crown appealed to the Court of Appeal of the Australian Capital Territory against a sentence imposed on the respondent, Patricia Anne Brewer. The respondent had been convicted of two counts of defrauding the Commonwealth and one count of general dishonesty causing risk of loss, relating to social security fraud totalling $80,849.84 over a period from 1994 to 2002. The primary judge had imposed a head sentence of two years imprisonment, fully suspended, which the Crown argued was manifestly inadequate.

The central legal issue before the Court of Appeal was whether the primary judge erred in law by fully suspending the respondent's sentence of imprisonment. This involved determining if the sentencing judge had applied the correct legal principles, particularly in light of established authorities regarding social security fraud and the criteria for suspending sentences. The Court was required to consider whether the respondent's subjective circumstances, including her otherwise good character and academic achievements, justified a fully suspended sentence, or if such a suspension was contrary to sentencing principles concerning punishment and general deterrence.

The Court of Appeal reasoned that while the primary judge correctly identified the objective seriousness of the offences and the need for a custodial sentence, the decision to fully suspend the sentence was an error of principle. The Court found that the respondent's subjective circumstances, including her good character and academic achievements, did not constitute "very special circumstances" that would warrant a departure from the general principle that fraud of this nature requires at least part of the sentence to be served. The Court noted that the respondent was an intelligent, mature, and not indigent individual who deliberately engaged in sustained fraud for her own benefit. The Court concluded that a fully suspended sentence failed to adequately address the needs of punishment and general deterrence in this case, and that the primary judge's assessment of the subjective factors was too lenient.

The Court of Appeal upheld the Crown's appeal. It set aside the original orders and resentenced the respondent to two years imprisonment, with the condition that she would be released upon entering into a recognizance to be of good behaviour for three years after serving six months of the sentence. This meant that a period of actual imprisonment was now required, reflecting the Court's view that a wholly suspended sentence was inappropriate.

Orders