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R v Julia Demir

R v Julia Demir

Case [2017] NSWLC 27 27 October 2017

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Local Court

New South Wales

Medium Neutral Citation: R v Julia Demir [2017] NSWLC 27
Hearing dates: 15 September and 27 October 2017
Decision date: 27 October 2017
Jurisdiction: Criminal
Before: Magistrate P Stewart
Decision:
18 month Intensive Correction Order
Costs order (Criminal Procedure Act 1986 (NSW) s 215)
Restitution Orders (Criminal Procedure Act 1986 (NSW) s 43(1); Victim Rights and Support Act 2013 (NSW) s 97(1))

Catchwords: CRIMINAL LAW - Particular offences – Property offences - Dishonestly obtain property by deception – false workers compensation claims – offender not employed – offender not injured – degree of planning – course of criminal conduct – further criminal conduct to dishonestly obtain benefit from second insurer – quantum of loss – consideration of parity issues – need for general deterrence – need for specific deterrence – assumption of sentencing outcome by parties – suspended sentence inappropriate sentencing option
Legislation Cited: Crimes Act 1900 (NSW) ss 53A, 192C, 192D, 192E(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 7, 12, 44(2B), 44(2C), 53B, 58
Criminal Procedure Act 1986 (NSW) ss 21A(2), 43(1), 215
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 134
Victim Rights and Support Act 2013 (NSW) s 97(1)
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Green v The Queen; Quinn v The Queen [2011] HCA 49
Jimmy v R [2010] NSWCCA 60
JM v R [2014] NSWCCA 297
McIntosh v R [2015] NSWCCA 184
Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372
PG v R [2017] NSWCCA 179
R v de Simoni (1981) 147 CLR 383
R v Doan (2000) 50 NSWLR 115
R v H (1980) 3 A Crim R 53
R v Henry [1999] NSWCCA 111
R v Merrin [2007] NSWCCA 255
R v Purdon (unreported, NSW Court of Criminal Appeal, 27 March 1997)
R v Tadrosse (2005) 65 NSWLR 740
R v Taylor [2000] NSWCCA 442
R v Thompson; R v Houlton [2000] NSWCCA 309
Regina v Van Tung Luu (unreported, NSW Court of Criminal Appeal, 7 December 1984)
Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169
The Queen v Allred [2015] ACTSC 327
Vaovasa v R [2007] NSWCCA 253
WorkCover Authority of New South Wales (Inspector Fester) v Lantry (unreported, Chief Industrial Magistrate’s Court, 9 December 1994)
Category: Sentence
Parties: State Insurance Regulatory Authority
Julia Demir (defendant)
Representation: Counsel:
Mr P Gow (for the prosecution)
Mr M Ainsworth (for the defence)

File Number(s): 2017/00035349

Judgment

The Charges and the Plea

The offender, Julia Demir, is charged with 2 counts of Obtain Property by Deception contrary to section 192E(1)(a) of the Crimes Act 1900 (NSW). The first count specifies that the offender obtained $27,809.60, the property of CGU Workers Compensation (NSW) Limited. The second count specifies that the offender obtained $11,186.38, the property of Allianz Australia Workers’ Compensation (NSW) Limited. The matters were first before the court on 22 February 2017. Pleas of not guilty were entered. The case was set down for a 3 day…

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 Julia Demir

Details

AGLC: R v Julia Demir [2017] NSWLC 27
Case: [2017] NSWLC 27
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Julia Demir involved an individual who had made false workers compensation claims, despite not being employed or injured. Demir had engaged in a course of dishonest conduct to obtain benefits from a workers compensation insurer, and subsequently, she attempted to make a similar claim with a second insurer. The court was tasked with determining the appropriate sentence for Demir, considering various legal issues including the degree of planning, the quantum of loss, and the need for deterrence.

The court examined the extent of Demir's planning and the seriousness of her actions, noting that she had not been employed or injured but had still attempted to obtain benefits dishonestly. The court also considered the broader context of her criminal conduct, including the impact on the insurance system and the need for both general and specific deterrence. The court was further required to address the issue of parity in sentencing, ensuring consistency with similar cases. Given the parties' assumption of a sentencing outcome, the court also assessed the appropriateness of a suspended sentence, ultimately deciding against it.

Following its analysis, the court imposed an 18-month intensive correction order on Demir, reflecting the seriousness of her actions while considering her capacity for rehabilitation. Additionally, the court made orders for costs under the Criminal Procedure Act 1986 (NSW) and restitution under the Criminal Procedure Act 1986 (NSW) and the Victim Rights and Support Act 2013 (NSW), requiring Demir to compensate the affected insurers for the financial losses they incurred.

Orders

Orders of the court

18 month Intensive Correction Order

Costs order (Criminal Procedure Act 1986 (NSW) s 215)

Restitution Orders (Criminal Procedure Act 1986 (NSW) s 43(1); Victim Rights and Support Act 2013 (NSW) s 97(1))

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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Citations

AGLC Citation

R v Julia Demir [2017] NSWLC 27

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

PG v R
[2017] NSWCCA 179 Para 61

…encing emerging from legislation and cases are set out in JM v R [2014] NSWCCA 297 at [39] per RA Hulme J., McIntosh v R [2015] NSWCCA 184 and PG v R [2017] NSWCCA 179 at [70] – [94].…
R v Allred
[2015] ACTSC 327 Para 48

…The prosecutor refers this court to The Queen v Allred [2015] ACTSC 327 which involved a fraud on the Commonwealth workers compensation scheme. At [36], Refshauge ACJ referred to R v Purdon (unreported, NSW Court of Criminal Appeal, 27 March 1997) where the NSW Court of Criminal Appeal reaffirmed the statement of p…
Mcintosh v R
[2015] NSWCCA 184 Para 61

…ions regarding aggregate sentencing emerging from legislation and cases are set out in JM v R [2014] NSWCCA 297 at [39] per RA Hulme J., McIntosh v R [2015] NSWCCA 184 and PG v R [2017] NSWCCA 179 at [70] – [94].…
Siddiqi v The Queen (Commonwealth)
[2015] NSWCCA 169 Para 64

…grievance. I have had regard to Green v The Queen; Quinn v The Queen [2011] HCA 49, Jimmy v R [2010] NSWCCA 60 and Siddiqi v Regina (Commonwealth ) [2015] NSWCCA 169. These decisions collectively refer to a number of other authorities regarding parity.…
JM v R
[2014] NSWCCA 297 Para 61

…I have had regard to the various propositions regarding aggregate sentencing emerging from legislation and cases are set out in JM v R [2014] NSWCCA 297 at [39] per RA Hulme J., McIntosh v R [2015] NSWCCA 184 and PG v R [2017] NSWCCA 179 at [70] – [94].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 64

…being a suspended sentence. To do otherwise may lead to a justifiable sense of grievance. I have had regard to Green v The Queen; Quinn v The Queen [2011] HCA 49, Jimmy v R [2010] NSWCCA 60 and Siddiqi v Regina (Commonwealth ) [2015] NSWCCA 169. These decisions collectively refer to a number of other authorities…
Jimmy v R
[2010] NSWCCA 60 Para 64

…e. To do otherwise may lead to a justifiable sense of grievance. I have had regard to Green v The Queen; Quinn v The Queen [2011] HCA 49, Jimmy v R [2010] NSWCCA 60 and Siddiqi v Regina (Commonwealth ) [2015] NSWCCA 169. These decisions collectively refer to a number of other authorities regarding parity.…
Vaovasa v R
[2007] NSWCCA 253 Para 59

…llinan JJ at [45]-[48]; Cahyadi v R [2007] NSWCCA 1 per Howie J. at [27]; R v Merrin [2007] NSWCCA 255 at [35] – [37] per Howie J.; and Vaovasa v R [2007] NSWCCA 253 at [16] per Howie J.…
R v Merrin
[2007] NSWCCA 255 Para 32

…he offences apart. There will be a degree of concurrency in sentencing for the two offences, though they will not be wholly concurrent. In R v Merrin [2007] NSWCCA 255, Howie J. (Gyles JA, Fullerton J. agreeing) said at [36]:…
Cahyadi v R
[2007] NSWCCA 1 Para 59

…ll be a degree of accumulation (see Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 per McHugh, Hayne & Callinan JJ at [45]-[48]; Cahyadi v R [2007] NSWCCA 1 per Howie J. at [27]; R v Merrin [2007] NSWCCA 255 at [35] – [37] per Howie J.; and Vaovasa v R [2007] NSWCCA 253 at [16] per Howie J.…
R v Tadrosse
[2005] NSWCCA 145 Para 39

…Section 21A(2)(m) relates to the offence involved a series of criminal acts. The meaning of this was explained in R v Tadrosse (2005) 65 NSWLR 740 at [29]:…
R v Doan
[2003] NSWSC 345 Para 33

…years imprisonment for each offence. In the Local Court, the jurisdictional limit is 2 years for each offence. The principles enunciated in R v Doan (2000) 50 NSWLR 115 per Grove J. at [35] apply, namely that the jurisdictional limit of the Local Court is not reserved for worst case scenarios.…
R v Taylor
[2000] NSWCCA 442 Para 82

…sentence. For reasons set out above, I am satisfied that it would not be appropriate to suspend the sentence for Ms Demir. As was said in R v Taylor [2000] NSWCCA 442, where general deterrence is the principal consideration, a suspended sentence “ provides very little, if anything, by way of general deterrence .”…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 2

…A discount of 10% is allowed for the utilitarian value of the plea, consistent with the authority of R v Thompson; R v Houlton [2000] NSWCCA 309.…
R v Henry
[1999] NSWCCA 111 Para 74

…ssions ahead of the charging process and pleaded guilty at an early opportunity. His previous drug addiction was a mitigating factor, per R v Henry [1999] NSWCCA 111. He told investigators in interview that he felt really guilty about his conduct. This was recorded in the statement of facts. SIRA have not appealed a…
Pearce v The Queen
[1998] HCA 57 Para 31

…In Pearce v The Queen [1998] HCA 57 at [40], McHugh, Hayne and Callinan JJ. said:…
R v De Simoni
[1981] HCA 31 Para 29

…ggravation may be considered by the court, but not if they would give rise to a more serious offence than the one before the court; see R v de Simoni (1981) 147 CLR 383. The aggravating factors do not give rise to a more serious offence. The offender could have been charged under section.192E(1)(b), which carries the…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
12, 3A, 44(2B), 44(2C), 5, 53B, 58, 7 9 mentions (from Para 34)
Crimes Act 1900 (ACT)
192C, 192D, 192E(1), 53A 5 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
215, 215), 21A(2), 43(1) 4 mentions
Victim Rights and Support Act 2013 (NSW)
97(1), 97(1)) 3 mentions (from Para 88)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
134 2 mentions (from Para 89)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 46)

Medium Neutral Citation:	R v Julia Demir [2017] NSWLC 27
Hearing dates:	15 September and 27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Criminal
Before:	Magistrate P Stewart
Decision:	18 month Intensive Correction Order Costs order (Criminal Procedure Act 1986 (NSW) s 215) Restitution Orders (Criminal Procedure Act 1986 (NSW) s 43(1); Victim Rights and Support Act 2013 (NSW) s 97(1))
Catchwords:	CRIMINAL LAW - Particular offences – Property offences - Dishonestly obtain property by deception – false workers compensation claims – offender not employed – offender not injured – degree of planning – course of criminal conduct – further criminal conduct to dishonestly obtain benefit from second insurer – quantum of loss – consideration of parity issues – need for general deterrence – need for specific deterrence – assumption of sentencing outcome by parties – suspended sentence inappropriate sentencing option
Legislation Cited:	Crimes Act 1900 (NSW) ss 53A, 192C, 192D, 192E(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 7, 12, 44(2B), 44(2C), 53B, 58 Criminal Procedure Act 1986 (NSW) ss 21A(2), 43(1), 215 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 134 Victim Rights and Support Act 2013 (NSW) s 97(1)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 Green v The Queen; Quinn v The Queen [2011] HCA 49 Jimmy v R [2010] NSWCCA 60 JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 PG v R [2017] NSWCCA 179 R v de Simoni (1981) 147 CLR 383 R v Doan (2000) 50 NSWLR 115 R v H (1980) 3 A Crim R 53 R v Henry [1999] NSWCCA 111 R v Merrin [2007] NSWCCA 255 R v Purdon (unreported, NSW Court of Criminal Appeal, 27 March 1997) R v Tadrosse (2005) 65 NSWLR 740 R v Taylor [2000] NSWCCA 442 R v Thompson; R v Houlton [2000] NSWCCA 309 Regina v Van Tung Luu (unreported, NSW Court of Criminal Appeal, 7 December 1984) Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169 The Queen v Allred [2015] ACTSC 327 Vaovasa v R [2007] NSWCCA 253 WorkCover Authority of New South Wales (Inspector Fester) v Lantry (unreported, Chief Industrial Magistrate’s Court, 9 December 1994)
Category:	Sentence
Parties:	State Insurance Regulatory Authority Julia Demir (defendant)
Representation:	Counsel: Mr P Gow (for the prosecution) Mr M Ainsworth (for the defence)
File Number(s):	2017/00035349