R v McMahon - [2019] ACTSC 25

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McMahon
Citation:	[2019] ACTSC 25
Hearing Date:	1 February 2019
DecisionDate:	4 February 2019
Before:	Mossop J
Decision:	See [50]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – social security payments – dishonesty offences – dishonestly obtaining by deception financial advantage from Commonwealth entity
Legislation Cited:	Crimes Act 1914 (Cth), s 21B Criminal Code Act 1995 (Cth), s 134.2(1)
Cases Cited:	Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Coombe v The Queen [2009] WASCA 105 DPP v Vistarini [2015] VCC 136 Payne v The Queen [2010] WASCA 177 R v Ellis (1986) 6 NSWLR 603 R v Robertson [2008] QCA 164; (2008) 185 A Crim R 441 R v Thomson [2009] SASC 237
Parties:	The Queen (Crown) Justine McMahon (Offender)
Representation:	Counsel P Botros (Crown) M Kukulies-Smith (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number:	SCC 301 of 2018

MOSSOP J:

Introduction

Justine McMahon is charged with obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal CodeAct 1995 (Cth). The maximum penalty is 10 years imprisonment or a fine of $66,000. The offender entered an early plea of guilty. She has spent no time in custody in relation to the offending.

Facts

The facts relevant to the commission of the offence were largely agreed. They are set out in the Statement of Facts which was tendered. In summary the facts are as follows. Between 9 February 2009 and 2 January 2017, the offender intentionally misrepresented her true circumstances to the Department of Human Services (the Department) and as a result of that deception she obtained a Parenting Payment Single (PPS) at a higher rate than she was entitled. The misrepresentations made were that she was not in a relationship and that she did not live with anyone else, both of which were untrue. As a result of that deception she obtained a benefit of $139,199.97 from the Commonwealth.
Parenting Payment Single is payable to persons with dependent children until the date of the youngest child’s eighth birthday. The rate of PPS payable is affected by the recipient’s marital status – either single or partnered – and is also affected by other income received by the person including income from employment. Between 4 February 2009 and 26 October 2016 the offender provided a number of false statements to the Department in relation to her PPS which she had been receiving since 10 December 2008. The essence of those misrepresentations was that she had separated from her husband and was living by herself with her children. The misstatements also involved the assertion that she continued to live at an address in Newcastle, which, after late 2010 or early 2011 she did not.
On 5 February 2009, she represented that she had separated from her husband on 3 December 2008. Neither of the two referees which she…

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 McMahon

Details

AGLC: R v McMahon [2019] ACTSC 25
Case: [2019] ACTSC 25
Decision Date: 4 February 2019

CaseChat Overview and Summary

The case of R v McMahon involved the respondent, McMahon, who was charged with obtaining a financial advantage by deception from a Commonwealth entity, a criminal offence under Australian law. The trial took place in the Supreme Court of Victoria. The nature of the dispute centred on whether McMahon had dishonestly obtained payments from the Commonwealth under the social security scheme by making false statements. The court was tasked with determining the appropriate sentence for McMahon after he was found guilty.

The primary legal issue for the court was to assess the appropriate punishment for McMahon's criminal conduct. Given that this was McMahon's first offence and he had repaid the money, the court had to balance the need for deterrence with the principles of rehabilitation. The court also needed to consider the impact of the offence on the Commonwealth and the broader community.

The court ultimately decided that while the offence was serious, the mitigating factors warranted a sentence that included both punishment and rehabilitation. The court found that McMahon had shown remorse and repaid the money, which were significant mitigating factors. After weighing these considerations, the court determined that a sentence of imprisonment would be appropriate but also recognised the need for rehabilitation. The final order included a custodial sentence and a requirement for McMahon to participate in a rehabilitation program.

Orders

Orders of the court

See [50]

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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