R v Leary

[2012] TASSC 33

[2012] TASSC 33

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            R v Leary [2012] TASSC 33

PARTIES:  R
  v
  LEARY, Joyce Ellen

FILE NO/S:  270/2011
DELIVERED ON:  1 June 2012
DELIVERED AT:  Hobart
HEARING DATES:  23 May, 1 June 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Social Welfare – Definitions – Other definitions – "Proper claim" – Fraudulent claim in proper form.
Social Security Act 1991 (Cth), ss106(1), 699(1).
Aust Dig Social Welfare [1008]

REPRESENTATION:

Counsel:
           Prosecution:  I M Arendt
           Accused:  A Mignot
Solicitors:
           Prosecution:  Director of Public Prosecutions (Commonwealth)
           Accused:  Legal Aid Commission of Tasmania

Judgment Number:  [2012] TASSC 33
Number of paragraphs:  9

Serial No 33/2012
File No 270/2011

THE QUEEN v JOYCE ELLEN LEARY

REASONS FOR JUDGMENT  BLOW J

(ORAL RULING)  1 June 2012

1. Ms Leary has pleaded guilty to three charges of defrauding the Commonwealth.  She made false statements in October 1994 and August 1998 which enabled her to defraud the Commonwealth of an enormous amount in social security benefits over at least 14 years. 

1. She made a false representation in October 1994 to the effect that she was still separated from her husband.  That false representation is the subject of count 1. She was receiving sickness allowance at that time.  She continued to receive that allowance until 30 May 1995. From that date onwards, she received job search allowance – a type of unemployment benefit that no longer exists – on the basis that she was still separated from her husband. She continued to receive that allowance on that basis until 20 August 1998.

1. On 8 August 1998 she lodged a claim for a disability support pension.  Counts 2 and 3 on the indictment relate to false representations that she made in a document at the time of claiming that pension. She said that she was single, having separated from her husband on 29 June 1994.  In another fraudulent answer she omitted to mention a bank account that had a substantial amount of money in it. The total amount that Ms Leary received by way of benefits between 21 September 1994 and 28 September 2010, when her fraud had been discovered, and the pension payments were stopped, was $216,377.61.

1. One of the matters that I am required to take into account for sentencing purposes is the loss resulting from these crimes: Crimes Act 1914 (Cth), s16A(2)(e). Mr Arendt submitted on behalf of the Crown that the loss to the Commonwealth in this case was the total amount of $216,377.61 that Ms Leary received over about 16 years. Counsel for Ms Leary, Ms Mignot, submitted that that was not correct, and that the loss was the difference between the amount actually paid, and the amount that would have been paid if her client had been honest and not defrauded the Commonwealth. Mr Arendt relied on provisions in the Social Security Act 1991 (Cth), whereby eligibility for each of type of pension or benefit depends on the making of a "proper claim". When Ms Leary made her claim for sickness allowance in 1994, the provisions of the Act relating to a "proper claim" for sickness allowance read as follows:

"699     Need for a claim

699(1)   A person who wants to be granted a sickness allowance must make a proper claim for that allowance.

Note: for "proper claim" see section 700 (form), section 701 (manner of lodgement) and section 702 (residence/presence in Australia).

…

700    Form of claim

700     To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.

701    Lodgement of claim

701(1)   To be a proper claim, a claim must be lodged:

(a)   at an office of the Department; or

(b)  at a place approved for the purpose by the Secretary; or

(c)   with a person approved for the purpose by the Secretary.

701(2)   A place or person approved under subsection (1) must be a place or person in Australia.

702    Claimant must be Australian resident and in Australia

702     Subject to section 703, a claim by a person is not a proper claim unless the person is:

(a)   an Australian resident; and

(b)  in Australia;

on the day on which the claim is lodged."

1. Mr Arendt argued that, although the Act did not say so, a fraudulent claim was incapable of being a "proper claim".  He referred me to similarly worded "proper claim" provisions in the Social Security Act, relating to disability support pensions, ss106 – 109, and Newstart allowance, ss635 – 638.  The Act used to contain similarly worded "proper claim" provisions relating to job search allowance, ss619 – 622, but those sections have been repealed.  Mr Arendt argued that all of Ms Leary's claims for pensions and benefits were fraudulent; that there had not been a "proper claim" for any pension or benefit that she received; that she had therefore been entitled to nothing from the Commonwealth; and that the loss to the Commonwealth was equal to the total of the pension and benefit payments that she received. 

1. I disagree.  If Parliament had wanted to make eligibility for any pension or benefit dependent upon honesty or truthfulness on the part of a claimant, specific provisions to that effect could have been included in the Act. The "proper claim" claim provisions set out a series of threshold requirements that need to be satisfied before a claim can be considered.  It must be in writing, in accordance with an approved form, lodged either at an appropriate place or with an approved person, and made by an Australian resident who is in Australia.  Not surprisingly, the Act does not impose any threshold requirement about truth or honesty. 

1. The note that appears under s699(1) must, pursuant to s39(1A)(b) of the Act, be taken to be "a part of the subsection that it follows". The note deals with the meaning of "proper claim" and refers the reader to the next three sections. Those sections relate to the form of a claim, the manner of its lodgement, and residence or presence in Australia. That note strongly suggests that the expression "proper claim" should be interpreted as referring to a claim that satisfies the requirements of the subsequent three sections.

1. Since the Act is a piece of beneficial legislation, any ambiguity in its provisions ought ordinarily to be resolved in favour of the class of persons intended to be benefited, namely those whose assets and incomes are such that they have a reasonable need for pensions or benefits: Secretary, Department of Social Security v Cooper (1990) 20 FCR 13 at 18; Rose v Secretary, Department of Social Security (1990) 21 FCR 241. There is nothing about the "proper claim" provisions to suggest that those provisions should not be given a beneficial interpretation. Denying a pension or benefit to an otherwise eligible individual, who provides incorrect information that could lead to an overpayment, could result in a needy individual having little or nothing to live on. Individuals in that situation would sometimes have dependants. It follows that there are sound policy reasons for not having a threshold requirement relating to truth or honesty. In my view the Act requires a person's eligibility for a pension or benefit to be determined according to his or her financial resources, not his or her honesty.

1. It has not been suggested that any of Ms Leary's claims for pensions or benefits did not satisfy the express statutory requirements relating to "proper claims".  I therefore infer that each of them was a proper claim for the purposes of the Act.  It follows, as I have said, that the extent of the loss to the Commonwealth is represented by the difference between the amount actually paid and the amount that Ms Leary was entitled to receive if the contents of her claims had been honest and accurate.  It also seems to me that, since the extent of the loss is one of the factors that has to be taken into account for sentencing purposes, the greater the loss, the more serious the crime.  It follows therefore that the extent of the loss is an aggravating factor which, in the event of any dispute, it is for the Commonwealth to prove.  The authority for that is the High Court's decision in R v Olbrich (1999) 199 CLR 270.