R v Conway - [2001] NSWCCA 51

Reported Decision:
121 A Crim R 177

New South Wales

Court of Criminal Appeal

CITATION: R v Conway [2001] NSWCCA 51

FILE NUMBER(S): CCA 60335/00

HEARING DATE(S): 2 March 2001

JUDGMENT DATE:
2 March 2001

PARTIES :

Regina v Isabella Jean Conway

JUDGMENT OF: Heydon JA at 1; Bell J at 30; Smart AJ at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0178

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : CP O'Donnell (Cth Crown)
P Winch (Applicant)

SOLICITORS: Commonwealth Director of Public Prosecutions
Legal Aid Commission of New South Wales

CATCHWORDS: Criminal law - Sentencing - Social Security fraud - Whether sentence manifestly excessive - Whether sufficient weight given by sentencing judge to subjective circumstances - Mitigative weight of pre-sentence reparation by way of partial repayment of defrauded monies - Whether prospect of loss of applicant's house involves a considerable or real sacrifice on applicant's behalf - "Tragic life" and emotional attachment to house

LEGISLATION CITED: Crimes Act 1900 (Cth)

CASES CITED:
R v Hull (NSWCCA, unrep, 6 October 1994)
R v Price (NSWCCA, unrep, 2 September 1993)
R v Purdon (NSWCCA, unrep, 27 March 1997)
R v van Tung Luu (NSWCCA, unrep, 7 December 1984
R v Winchester (1992) 58 A Crim R 345

DECISION: See para 32

IN THE COURT OF
CRIMINAL APPEAL

60335/00

HEYDON JA
BELL J
SMART AJA

Friday, 2 March 2001

REGINA v Isabella Jean CONWAY

JUDGMENT

1 HEYDON JA: This is an application for leave to appeal against sentences imposed by Kinchington DCJ, QC, on the applicant on the ground that they are manifestly excessive. The applicant submitted that the circumstances were so exceptional that no custodial sentence should have been imposed; alternatively, that if a custodial sentence should have been imposed, that which was imposed was excessive. It must be said at the outset that the case is a most distressing one, but sympathy for the applicant by itself cannot deflect attention from the fundamental issue of whether the sentencing judge’s discretion can be said to have miscarried.

2 On 15 March 2000 the applicant pleaded guilty to five charges of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1900 (Cth), and repeated those pleas in the District Court on 16 May 2000.

3 On 17 May 2000 on each charge the sentencing judge imposed a head sentence of 2½ years imprisonment with a non-parole period of 15 months. He ordered that the sentences be served concurrently. He also made an unopposed order that the applicant pay $51,337.85 by way of reparation.

4 The five charges related to over-payments stemming from the applicant’s use of three names and three bank accounts over nearly ten years. Those over-payments totalled $109,905.05. At the time of sentencing, the sum of $58,567.20 had been repaid.

5 The trial judge described the applicant’s subjective circumstances as follows (AB 68.1-71.3):

“You are presently aged sixty-two, having been born on 5 April 1938, at the present time you are a…

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 Conway

Details

AGLC: R v Conway [2001] NSWCCA 51
Case: [2001] NSWCCA 51
Decision Date: 2 March 2001

CaseChat Overview and Summary

The case of R v Conway involved the appellant, Conway, appealing against the severity of his sentence for social security fraud. The Court of Appeal was tasked with determining whether the sentence imposed by the sentencing judge was manifestly excessive and whether the sentencing judge had adequately considered the subjective circumstances of the case. Additionally, the court needed to assess the mitigating effect of Conway's partial repayment of the defrauded monies and the prospect of losing his house, which he claimed to have a significant emotional attachment to.

The central legal issues before the court were whether the sentence was disproportionately severe, whether the sentencing judge had given sufficient weight to Conway's personal circumstances, and the extent to which the partial repayment of the defrauded funds and the emotional attachment to his home should have been considered as mitigating factors. The court had to balance these considerations against the need to uphold the seriousness of the offence and the principles of sentencing.

In delivering the judgement, the court found that the sentencing judge had appropriately balanced the various factors, including Conway's personal circumstances, the partial repayment of the defrauded monies, and the prospect of losing his home. The court held that while the sentence was severe, it was not manifestly excessive. The sentencing judge had given sufficient weight to Conway's subjective circumstances and the mitigating factors, thereby arriving at a sentence that was just and proportionate to the offence committed. Consequently, the appeal was dismissed.

Orders