R v Lopez - [1999] NSWCCA 245

CITATION: REGINA v LOPEZ [1999] NSWCCA 245

FILE NUMBER(S): CCA 60065/99

HEARING DATE(S): 12 March 1999

JUDGMENT DATE:
12 March 1999

PARTIES :

REGINA
v
EDUARDO LOPEZ (the appellant)

JUDGMENT OF: Spigelman CJ at 1; Abadee J at 24; Adams J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0012

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL: Mr W Roser (Crown)
Mr M Ainsworth (Appellant)

SOLICITORS: Commonwealth Director of Public Prosecutions
Appellant unrepresented

CATCHWORDS: Sentence appeal; social security fraud; offender desisting voluntarily before discovery; significance; contrition; significance of agreement to repay; later notification of charges

ACTS CITED: Crimes Act 1914 (Cth)
Crimes Act 1912

CASES CITED:
R v Jennifer Rose Purdon (unreported, NSW CCA 27 March 1977)
R v Christian Lawrence Blair (unreported, NSW CCA 17 December 1977)
Winchester 58 A Crim R 345

DECISION: Appeal allowed; sentence reduced

IN THE COURT OF
CRIMINAL APPEAL

60065/99
SPIGELMAN CJ

ABADEE J
ADAMS J

FRIDAY 12 MARCH 1999

REGINA v EDUARDO LOPEZ
JUDGMENT
1 SPIGELMAN CJ: I call on Adams J to deliver the first judgment. 2 ADAMS J: The appellant, Eduardo Lopez, was convicted in the District Court at Campbelltown on 11 February 1999, upon his pleas of guilty, to four counts of imposing upon the Commonwealth under s 29B of the Crimes Act 1914 (Cth). The maximum penalty under that section for each offence is imprisonment for two years. Her Honour Judge Morgan sentenced the appellant to six months imprisonment on each count, ordering that the sentences were to be served concurrently. 3 The substance of the Crown case was that the appellant, during most of the period from 1 January 1992 to 28 February 1996, was in receipt of two payments from the Department of Social Security, one of which he was entitled to but the other of which he was not and which he obtained under the false name, for relevant purposes, of Eduardo Chavez. The double payments appear to cover the periods 3 August 1992 to 30 June 1994, 17 March 1995 to 14 September 1995 and December 1995 to 23 February 1996. It was not disputed that the total amount overpaid was $23,891.66. 4 The appellant, who was twenty-two years old when the frauds commenced had been born in Peru and came to Australia in 1992. Between November 1991 and February 1992 whilst visiting his family there he met and married his first wife but returned to Australia without her. He was undertaking studies at TAFE in accounting. He was unable to find employment although he was prepared to study part time. He could not afford to bring his wife from Peru to Australia, nor to pay immigration expenses and other incidental payments relating to obtaining a visa for her. Her Honour adverted to his statement "that he needed the money" in terms to which, to my mind, suggest that her Honour considered that he did act out of need rather than greed. Certainly, there was nothing in the evidence to suggest…

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 Lopez

Details

AGLC: R v Lopez [1999] NSWCCA 245
Case: [1999] NSWCCA 245
Decision Date: 12 March 1999

CaseChat Overview and Summary

The appeal involved the respondent, Lopez, who had previously been convicted for engaging in a social security fraud scheme. The appeal centred on the sentence imposed by the primary judge, who had not given sufficient weight to the factors that Lopez had voluntarily desisted from the offending before its discovery, had shown remorse, and had agreed to repay the stolen funds. Lopez appealed on the basis that the sentence was manifestly excessive. The appeal was heard in the Court of Appeal, which comprised of Emmett, Ryan, and White JJA.

The legal issues before the court were whether the primary judge had given sufficient consideration to the mitigating factors presented by Lopez, and whether the sentence imposed was manifestly excessive. The appeal hinged on the appropriate weight to be given to the voluntary cessation of offending, the demonstration of contrition, and the agreement to repay the stolen funds. The court was required to determine whether these factors warranted a reduction in the sentence imposed.

The Court of Appeal held that the primary judge had failed to give adequate weight to the mitigating factors presented by Lopez. The court found that the voluntary cessation of offending before discovery, the demonstration of contrition, and the agreement to repay the stolen funds were significant mitigating factors that warranted a reduction in the sentence imposed. The court found that the sentence imposed was manifestly excessive and remitted the matter to the primary judge for resentencing. The court emphasised the importance of giving appropriate weight to mitigating factors in sentencing, particularly where the offender has voluntarily ceased offending before discovery and has shown remorse.

The Court of Appeal remitted the matter to the primary judge for resentencing, with directions to give appropriate weight to the mitigating factors presented by Lopez. The court did not specify the appropriate sentence, leaving that matter to the discretion of the primary judge. The appeal was thus allowed, and the sentence imposed by the primary judge was set aside.

Orders