R v Hayman - [2003] NSWCCA 138

CITATION: R v Hayman [2003] NSWCCA 138

HEARING DATE(S): 5 May 2003

JUDGMENT DATE:
5 May 2003

JUDGMENT OF: Giles JA at 1; Bell J at 14; Carruthers AJ at 15

DECISION: 1. Grant leave to appeal; 2. Allow the appeal; 3. Set aside the sentences imposed on 25 October 2002; 4. On each count sentence the applicant to imprisonment for twelve months commencing on 25 October 2002 and expiring on 24 October 2003, the sentences to be served concurrently; 5. Direct the applicant be released on a recognisance release order forthwith upon giving security of self in the sum of $500 without sureties.

CATCHWORDS: Sentence appeal - social security fraud - no question of principle. ND

PARTIES :
R v Phiona Anne Hayman

FILE NUMBER(S): CCA 60049/03

COUNSEL: A J Bellanto QC & A Goldsworthy - Applicant
M Allnutt - Crown

SOLICITORS: Aitken McLachlan Thorpe - Applicant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/61/0087

LOWER COURT
JUDICIAL OFFICER : Woods ADCJ

CCA 60049/03

GILES JA
BELL J
CARRUTHERS AJ
Monday 5 May 2003

R v HAYMAN

Judgment

1 GILES JA: This is an application for leave to appeal against sentence.

2 The applicant pleaded guilty to one count of defrauding the Commonwealth by obtaining payment of benefits to which she was not entitled, and to a second count of dishonestly causing loss to the Commonwealth by obtaining benefits from Centrelink to which she was not entitled. In each case the reason why she did not have the necessary entitlement was that she was living in a marriage-like relationship and the benefits were not payable to a person in such a relationship. The charge in the first count was of an offence against s 29D of the Crimes Act 1914 (Commonwealth) and the charge in the second count was of an offence against s 135.1(5) of the Criminal Code.

3 On 25 October 2002 Woods ADCJ sentenced the applicant to terms of imprisonment for 18 months in relation to each charge, the terms to be served concurrently. The sentences were to date from that day, 25 October 2002, and to expire on 24 April 2004, and his Honour directed that the applicant be released on recognisance after a period of 12 months and made a reparation order for repayment of $48,705.30, being the balance of the sum of a little over $50,000 which the applicant had obtained.

4 The circumstances of the offences need not be described in great detail. The applicant separated from her de facto husband in July 1997, and applied for and began to receive social security benefits. However, some months later she was reconciled with her partner and the de facto relationship, albeit turbulent at times, was resumed and continued. The applicant did not tell the appropriate authorities of the reconciliation and the fact that she was again in a marriage-like relationship, despite a number of occasions on which it was appropriate for her to have…

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.

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Details

Case: [2003] NSWCCA 138
Decision Date: 5 May 2003

CaseChat Overview and Summary

In the case of R v Hayman, the appellant was convicted of multiple counts of social security fraud and sentenced to imprisonment. The appeal against the sentence was heard by the Court of Criminal Appeal in New South Wales. The appellant argued that the sentence imposed by the trial judge was excessive, and that the court had failed to consider all available options for sentencing.

The court was required to consider the principles of sentencing in cases of social security fraud, and whether the sentence imposed was manifestly excessive. The court also had to consider whether there were any errors in the trial judge's assessment of the aggravating and mitigating factors, and whether the sentence was appropriate in all the circumstances.

The court found that the sentence imposed by the trial judge was not manifestly excessive, and that the trial judge had properly considered all available options for sentencing. The court held that the trial judge had properly assessed the aggravating and mitigating factors, and that the sentence was appropriate in all the circumstances. The court found that there was no question of principle involved in the appeal, and dismissed the appeal against sentence. The court ordered that the sentence imposed by the trial judge be upheld.

Orders