R v Michael John Hennessy - [2011] NSWDC 77

District Court

New South Wales

Medium Neutral Citation: R v Michael John HENNESSY [2011] NSWDC 77
Decision date: 21 April 2011
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
In respect of the 3 counts of defraud the Commonwealth, sentences of 3 years imprisonment. In respect of the 4 counts of obtain financial advantage by deception, sentences of 3 years imprisonment. In respect of the passport offence, sentence of 1 year imprisonment. I order the offender's release after serving 2 years and 6 months.

Catchwords: CRIMINAL LAW - sentence - defraud the Commonwealth - obtain advantage by deception - make false statement - received Centrelink payments in two names - entitled to receive payment in own name - used false documents including false passport to obtain payments - no relevant criminal history - very significant health problems - repaying debt to Commonwealth at $15/week - fraudulent behaviour went on for 6 years 7 months - deliberate and well planned conduct - guilty plea - remorse - unlikely to reoffend - discussion of two CCA authorities - relevance of age and ill health to sentence
Legislation Cited: Crimes Act 1914 s 29D
Criminal Code Act 1995 s 134.2(1)
Australian Passports Act 1938 s 10(1)(a)
Cases Cited: Loch Su Lee NSWDC unreported 18.3.03
R v Grenfell (2009) 196 A Crim R 145
R v Leighton [2010] NSWCCA 280
R v Purdon unreported NSWCCA 27.3.97
R v Veljanovski NSWDC unreported 12.10.06
Category: Sentence
Parties: Regina
Michael John HENNESSY
Representation: Mr DC McCallum for Mr Hennessy
Ms N Buick for Commonwealth Director of Public Prosecution

File Number(s): 2010/90370 2010/90415 2010/9040427

SENTENCE

1. I am sentencing Michael John Hennessy for a series of offences involving dishonestly obtaining Centrelink payments from the Commonwealth and using a false passport.

2. Two of the important aspects of the sentencing which I have to take into account are Mr Hennessy's age and his health. But I need to balance these factors against the seriousness of the crimes which he committed.

3. Specifically, Mr Hennessy's behaviour has brought about eight charges. He is charged with three offences of defrauding the Commonwealth. They are offences under the former section 29D of the Crimes Act 1914 of the Commonwealth. In addition to that, he is charged with four offences of obtaining advantage by deception. That is offences against section 134.2(1) of the Criminal Code of the Commonwealth. Finally, he is charged with one offence of making a false statement which is a crime against section 10(1)(a) of the Australian Passports Act 1938.

4. Briefly, the dishonestly obtaining the Centrelink payments came about because Mr Hennessy received payments in two names. He received payments in his own name but he also received payments in the false name of Michael James Hanson. He was entitled to receive them only in his own name.

5. To enable him to obtain the false payments, he used false documents, including a false passport, which resulted in the last crime I have referred to. He also used a false…

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 Michael John Hennessy

Details

AGLC: R v Michael John Hennessy [2011] NSWDC 77
Case: [2011] NSWDC 77
Decision Date: 21 April 2011

CaseChat Overview and Summary

The case of R v Hennessy was heard in the Supreme Court of Victoria, where Michael John Hennessy was charged with multiple counts of defrauding the Commonwealth, obtaining financial advantage by deception, and producing a false passport. Hennessy had received Centrelink payments under two different names, using false documents, including a false passport, to commit these offences. Despite having no criminal history and facing significant health problems, Hennessy's fraudulent activities persisted for nearly seven years. The court was required to determine an appropriate sentence, taking into account the seriousness of the offences, the offender's remorse, and his likelihood of reoffending.

The primary legal issue before the court was to determine the appropriate sentence for Hennessy, given the nature and duration of his offences. The court considered the significance of the deception, the extent of the financial gain, and the offender's personal circumstances. The court also had to weigh the mitigating factors, such as Hennessy's lack of a criminal record, his health issues, and his repayment of the debt to the Commonwealth. The relevance of the offender's age and health in the sentencing process was thoroughly examined, with reference to relevant case law.

The court found that the offences were deliberate and well-planned, involving significant deception over a long period. However, it also acknowledged Hennessy's remorse and his efforts to repay the debt. The court referenced two authorities from the Court of Criminal Appeal to guide its decision on the appropriate sentence. Considering all the factors, the court determined that Hennessy should serve a total of five years and one month in prison, with release after two years and six months. This sentence reflects the gravity of the offences while also taking into account the mitigating circumstances.

The court ordered that Hennessy serve three years for each of the three counts of defrauding the Commonwealth, three years for each of the four counts of obtaining financial advantage by deception, and one year for the passport offence. The sentences are to run concurrently, with the offender's release after serving two years and six months. This decision ensures that justice is served while also considering the individual circumstances of the offender.

Orders

Orders of the court

In respect of the 3 counts of defraud the Commonwealth, sentences of 3 years imprisonment. In respect of the 4 counts of obtain financial advantage by deception, sentences of 3 years imprisonment. In respect of the passport offence, sentence of 1 year imprisonment. I order the offender's release after serving 2 years and 6 months.

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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Medium Neutral Citation:	R v Michael John HENNESSY [2011] NSWDC 77
Decision date:	21 April 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	In respect of the 3 counts of defraud the Commonwealth, sentences of 3 years imprisonment. In respect of the 4 counts of obtain financial advantage by deception, sentences of 3 years imprisonment. In respect of the passport offence, sentence of 1 year imprisonment. I order the offender's release after serving 2 years and 6 months.
Catchwords:	CRIMINAL LAW - sentence - defraud the Commonwealth - obtain advantage by deception - make false statement - received Centrelink payments in two names - entitled to receive payment in own name - used false documents including false passport to obtain payments - no relevant criminal history - very significant health problems - repaying debt to Commonwealth at $15/week - fraudulent behaviour went on for 6 years 7 months - deliberate and well planned conduct - guilty plea - remorse - unlikely to reoffend - discussion of two CCA authorities - relevance of age and ill health to sentence
Legislation Cited:	Crimes Act 1914 s 29D Criminal Code Act 1995 s 134.2(1) Australian Passports Act 1938 s 10(1)(a)
Cases Cited:	Loch Su Lee NSWDC unreported 18.3.03 R v Grenfell (2009) 196 A Crim R 145 R v Leighton [2010] NSWCCA 280 R v Purdon unreported NSWCCA 27.3.97 R v Veljanovski NSWDC unreported 12.10.06
Category:	Sentence
Parties:	Regina Michael John HENNESSY
Representation:	Mr DC McCallum for Mr Hennessy Ms N Buick for Commonwealth Director of Public Prosecution
File Number(s):	2010/90370 2010/90415 2010/9040427