R v Edwards; Ex Parte - [2001] QCA 93

[2001] QCA 93

COURT OF APPEAL

McMURDO P
McPHERSON JA
WILLIAMS JA

CA No 314 of 2000

THE QUEEN

MICHELLE RENEA EDWARDS Respondent

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Appellant

BRISBANE

..DATE 14/03/2001

JUDGMENT

WILLIAMS JA: The respondent pleaded guilty in the District Court to a charge that between 10 December 1996 and 13 April 2000 at Wyong and elsewhere in the State of New South Wales, and at Tin Can Bay and elsewhere in the State of Queensland, she defrauded the Commonwealth. The sentencing Judge was asked to take into account some 12 other pending charges, and I will refer to those in more detail later.

The sentence imposed was two and a half years' imprisonment, to be immediately suspended upon the respondent entering into a recognisance to be of good behaviour, secured in the sum of $2,000, for a period of three years. It was also a condition of the recognisance that she be subject to probation supervision for a period of two years. Finally, a reparation order was made in the sum of $72,100.57.

From that sentence, the Commonwealth Director of Public Prosecutions has appealed to this Court submitting that, in all the circumstances, the respondent should have been required to serve a period of actual custody.

The principal charge involved the respondent receiving social security payments in two names, MacDonald and Edwards, the latter being her mother's maiden name and the name she now prefers to use. In other words, she was receiving two lots of social service payments. Also she commenced employment on 1 May 1998 and, in consequence of that, social security payments to which she was lawfully entitled should have been reduced in quantum. The total amount that she fraudulently obtained from the Commonwealth, the subject of that charge, was $47,550.30.

As I said, the sentencing Judge was also asked to take into account some 12 other charges. Those charges covered a period from 18 August 1988 to 30 November 1995. All of the charges involved the respondent obtaining social security payments which were either not payable or payable only in part.

On 12 September 1996, those charges were listed for hearing in the Maroochydore Magistrates Court on 29 and 30 January 1997. They were, however, mentioned again on 12 December 1996 when the respondent's solicitors sought and were granted leave to withdraw. The respondent failed to appear in that Court on 29 January 1997 and a warrant was issued for her arrest.

So it can be seen that the conduct, the subject of the principal charge to which the respondent pleaded guilty, were committed substantially after her failure to appear in the Maroochydore Magistrates Court and whilst there was a warrant out for her arrest with respect to those charges.

It should also be noted she fraudulently applied for Newstart Allowance Payments on 11 December 1996, the day before the other matters were mentioned in the Magistrates Court.

I should say that the total amount involved in the 12 other charges…

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 Edwards; Ex Parte

Details

AGLC: R v Edwards; Ex Parte [2001] QCA 93
Case: [2001] QCA 93
Decision Date: 14/03/2001

CaseChat Overview and Summary

Michelle Renea Edwards appealed against her sentence for defrauding the Commonwealth by receiving social security payments in two names, and for other fraud-related offences. The Commonwealth Director of Public Prosecutions appealed the sentence imposed by the District Court, which was two and a half years' imprisonment, suspended upon the respondent entering into a recognisance to be of good behaviour, secured in the sum of $2,000, for a period of three years. The Director of Public Prosecutions submitted that the respondent should have been required to serve a period of actual custody.

The Court considered the extensive criminal history of the respondent, who had a history of offences involving false pretences or fraud, and the fact that she had been on probation at the time of the commission of the principal offence. The Court also considered the systematic defrauding of the Commonwealth, the use of false names and false documentation, and the total amount involved in the offences, which was $81,618.85. The Court held that a custodial sentence could well have been justified on the grounds of the offences alone.

However, the Court also considered the mitigating factors, including the respondent's responsibility for two children, her satisfactory response to probation, and the fact that she had made partial repayments to the Commonwealth since her sentence. The Court held that the sentence of imprisonment which ought to be imposed should be kept to the very minimum, but that the conduct of the respondent justified the imposition of a heavier sentence than that which was initially imposed. The Court ordered that the term of imprisonment be suspended after serving six months imprisonment upon the respondent entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of three years.

The Court additionally ordered that a warrant issue for the arrest of the respondent to lie in the Registry for seven days. The orders were in line with those proposed by Justice of Appeal Williams.

Orders