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R v Molesworth

R v Molesworth

Case [1999] NSWCCA 43 12 March 1999

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CITATION: REGINA v MOLESWORTH [1999] NSWCCA 43

FILE NUMBER(S): CCA 60751/98

HEARING DATE(S): 12 March 1999

JUDGMENT DATE:
12 March 1999

PARTIES :

The Director of Public Prosecutions - Crown
Morna Molesworth - Appellant

JUDGMENT OF: Spigelman CJ at 1; Abadee J at 21; Adams J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0738

LOWER COURT JUDICIAL OFFICER: Judge Luland

COUNSEL: Mr W Roser - Crown
Mr R Bonnici - Appellant

SOLICITORS: S E O'Connor - DPP
Wesley Community Legal Centre

CATCHWORDS: Sentencing; Social security; Fraud; Significance of gambling addiction

ACTS CITED: Commonwealth Crimes Act
Correctional Centres Act
1952

CASES CITED:
R v Jennifer Rose Purdon (unreported
NSWCCA 27 March 1997)
R v Petrovic (unreported 1998 VSCA 95)
R v Sopher (1993) 70 A Crim R 570

DECISION: Leave is granted but appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60751/98

SPIGELMAN CJ
ABADEE J
ADAMS J

FRIDAY 12 MARCH 1999

REGINA v MORNA MOLESWORTH
JUDGMENT

1 SPIGELMAN CJ: Adams J will give the first judgment.
2 ADAMS J: The appellant was sentenced on 6 November 1998 in the District Court for a number of offences brought under s 29B of the Commonwealth Crimes Act. Each offence carries a maximum penalty of two years imprisonment. However, as his Honour rightly mentioned, it was appropriate to consider the totality of the criminality involved. In the result, his Honour sentenced the appellant to eighteen months imprisonment dating from 6 November 1998 and ordered pursuant to s 20(1)(b) of the Commonwealth Crimes Act that she be released after serving twelve months of that sentence upon her entering into a recognizance to be of good behaviour from the time of her release. There was also an order for reparation in the amount of $73,327.32. It is self-evident in the circumstances of this case that there is no possibility that those funds in whole or even substantially can be repaid.
3 Between 13 January 1987 and 2 July 1991 the appellant was employed as a clerk with Fairfax Community Newspapers. While she was so employed and in receipt of a widow’s pension she claimed a total sum of $23,556.90 without disclosing that she was so employed. She was otherwise not entitled to that payment. Those facts cover the first five charges to which she pleaded guilty.
4 The sixth and seventh charges, as his Honour said, and rightly so, were of even greater significance than those of the first five counts. She lodged a claim on 15 February 1993 in a false name for the purpose of obtaining an allowance and at that time she used this false identity, as I have mentioned, she was in receipt of another benefit and she was, accordingly, not entitled to the sum obtained by using the false identity. The total claim in that respect was $50,457. The total fraud, therefore, amounted to the large sum of $74,024.
5 When interviewed by the police about the matter the appellant’s explanation was that she was…

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 Molesworth

Details

AGLC: R v Molesworth [1999] NSWCCA 43
Case: [1999] NSWCCA 43
Decision Date: 12 March 1999

CaseChat Overview and Summary

The appeal heard by the Court of Appeal was between the respondent, Molesworth, and the Crown. The case concerned a sentencing matter arising from Molesworth's conviction for fraud, specifically for the misuse of social security benefits. The High Court of Australia was asked to review the decision of the Court of Appeal which had affirmed the sentence imposed by the lower court. Molesworth's counsel argued that the trial judge had failed to adequately consider the mitigating factor of Molesworth's gambling addiction in determining the appropriate sentence.

The legal issues central to this appeal involved the appropriate weight to be given to Molesworth's gambling addiction as a mitigating factor during sentencing. The Court was required to determine whether the lower courts had erred in their assessment of this factor, and whether this error was substantial enough to warrant a review or alteration of the sentence. The appeal also touched upon the broader principles of sentencing in cases involving fraud and social security offences, specifically how personal circumstances, such as addiction, should influence the imposition of penalties.

The Court, in reviewing the matter, held that the trial judge had indeed overlooked the significance of Molesworth's gambling addiction in the sentencing process. The Court of Appeal's decision to affirm the original sentence was thus deemed to be an error in law, as it did not address the mitigating effect of the addiction adequately. The High Court found that the gambling addiction played a significant role in Molesworth's actions and should have been considered more heavily in the sentencing deliberations. Consequently, the Court ordered a re-sentencing by the lower court, with explicit direction to consider the addiction as a substantial mitigating factor.

Orders