R v Robert BARLOW

[2007] NSWDC 225

CITATION:	R v Robert BARLOW [2007] NSWDC 225
HEARING DATE(S):	1 August 2007
JUDGMENT DATE:	3 August 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraphs 30 - 33
CATCHWORDS:	CRIMINAL LAW - SENTENCE - COMMONWEALTH - Offences of dishonestly receiving a social security benefit
LEGISLATION CITED:	Crimes Act 1914 (Cth) s 16A, 16F, 19AC, 29B, 29D Criminal Code (Cth) s135(1)
PARTIES:	Crown Robert Barlow
FILE NUMBER(S):	07/31/1010
COUNSEL:	C. Dobraszcsyk (Crown) B. Hewson (Offender)
SOLICITORS:	M. Conn (Commonwealth DPP)

JUDGMENT

HIS HONOUR:

1 As to the sentencing of Robert John Barlow. He was born on 19 October 1954. He is aged 52 years, nine months.

2 The offender is the second child of his parents four children. His father is deceased. He has a good, if not close, relationship with his mother and siblings.

3 The offender’s upbringing was difficult and he was unhappy and considered to be uncontrollable. He left his parents’ home when he was aged 13 years and moved to the country in search of employment.

4 The offender’s education was limited because he was expelled from high school when he was aged 13 years.

5 After leaving school, the offender moved to the country where he obtained employment. He has held various employments of an unskilled or semi-skilled kind until 2004 when he ceased paid employment.

6 The offender is married and he and his wife are the parents of three children, all of whom are adult and self supporting and with all of whom he has a close relationship. His wife is dependent upon him.

7 The offender’s life changed during 1984 when he witnessed a close friend and the friend’s son die in a truck, which burst into fire after an accident. After this incident he commenced to consume intoxicating liquor to excess and to use prohibited drugs. His other vice was gambling. He commenced to commit the offences with which I am concerned when his consumption of intoxicating liquor, use of prohibited drugs and gambling got out of his control. All of the money that he received from the Department of Social Security and its successor has been spent on intoxicating liquor, prohibited drugs and gambling.

8 The offender does not enjoy good physical or mental health. He suffers from coronary heart disease with atrial fibrillation, for which he takes prescribed medication; asthma, for which he uses a Ventolin puffer; Type 2 diabetes, for which he injects himself with insulin three times a day, and depression, for which he takes prescribed medication. In February 2005 he suffered a burst aneurism followed by a stroke, which was his second stroke, and for which he takes prescribed medication, and which has left him with weakness of his right side, a limp on his right leg, impaired balance, headaches, blackouts, perhaps a fugue-like state and memory loss.

9 The offender does not have an unblemished character. His criminal record is exhibit D. Between 12 June 1968 and 26 February 1988 he was dealt with for 55 offences, 11 in a Children’s Court, 40 in a Local Court and four in the District Court. Of the 40 offences dealt with in a Local Court, 29 were dishonestly obtaining money by a false pretence and two were imposition upon the Department of Social Security. I note that the offender was dealt with for the offences of imposition upon the Department of Social Security on 26 February 1988, which was within and towards the end of the period from 25 August 1985 and 28 October 1988, when he was receiving sickness benefits from the Department of Social Security in his name while in employment with Sydney Electricity under the assumed name of Robert John Stephens.

10 During 13 periods between 25 August 1985 and 16 December 2004, a period greater than 19 years, the offender dishonestly received various amounts of money paid as one or other social security benefit from the Department of Social Security and its successor, the Commonwealth Services Delivery Agency. Details of the offence are set out in the Court Attendance Notices served on the offender on 31 October 2006.

11 The fact that the offender had dishonestly received money from the department and its successor was discovered by computer matching of the details given by the offender when applying for benefits using his own name and also when applying for benefits using the assumed name of Robert John Stephens. Details of the investigation and the cross-referencing are set down in the statement of facts, exhibit A. I note that Dr Westmore records being told by the offender that it was the offender who informed the agency of his dishonestly receiving benefits from the department and the agency. This is incorrect.

12 During the 13 periods when the offender dishonestly received money from the department and its successor, the offender received a total amount of $132,313.95, of which amount he was not entitled to the amount of $119,915.59. Details of the amounts paid to the offender to which he was not entitled are contained in exhibit B.

13 On 20 January 2005 the offender was interviewed by an officer of the agency. A transcript of the interview is exhibit C. During the interview the offender admitted that he had received benefits when he was in employment using the assumed name of Robert John Stephens and also that he had received benefits in the assumed name of Robert John Stephens and he admitted that he knew that he was not entitled to receive those benefits. His ready and frank admissions when interviewed show his contrition for the offences.

14 On 31 October 2006 the offender was served with three Court Attendance Notices charging him with the 13 offences and requiring him to appear before a Magistrate in the Local Court at Parkes on 23 November 2006 to answer the charges. I do not know the reason for the delay between the interview on 20 January 2005 and the service of the Court Attendance Notices on 31 October 2006 in the prosecution of the offender for the offences or the reason for the Court Attendance Notices requiring him to appear in the Local Court at Parkes, when he lived, as the agency knew, on the Central Coast.

15 In due course, on 13 February 2007 the offender appeared before a Magistrate in the Local Court at Woy Woy for a committal hearing in relation to the offences. It was to be a paper committal hearing. He pleaded guilty to each of the 13 offences and he was committed to appear in this Court on 22 March 2007 for sentence. His guilty pleas were entered at the earliest appropriate opportunity, thereby saving the time and costs of a trial and thus entitling him to a discount in penalty of 25% and also they show further his contrition to the offences.

16 Subsequently, on 1 August 2007 the offender appeared before me in the Court at Gosford on the sentencing proceedings. He adhered to the guilty pleas given before the Magistrate. I received documentary material from the Crown Prosecutor and the offender’s counsel and I heard evidence from the offender and submissions as to sentence from counsel, after which I stood over the sentencing of the offender to today.

17 Of the 13 offences committed by the offender the first two are offences contrary to s 29B of the Crimes Act (Commonwealth), the next seven are offences contrary to s 29D of the Crimes Act (Commonwealth) and the last four are offences contrary to s 135(1) para 15 of the Criminal Code (Commonwealth).

18 The prescribed penalty for an offence against s 29B of the Crimes Act is imprisonment for a maximum of two years or a fine of a maximum of $5,000 or both.

19 The prescribed penalty for an offence against s 29D of the Crimes Act committed before 8 January 2003 is imprisonment for a maximum of 10 years and a fine of a maximum of $100,000 or both and for offences committed after 8 January 2003 imprisonment for a maximum of 10 years or a fine of a maximum of $110,000 or both.

20 The prescribed penalty for an offence contrary to s 135(1) paragraph 15 of the Criminal Code (Commonwealth) is imprisonment for a maximum of five years or a fine of a maximum of $33,000 or both.

21 There cannot be any doubt that the offences are serious offences. I find it difficult to say which one is more serious than another one. Perhaps dishonestly obtaining a benefit under an assumed name is more serious than doing so under one’s own name. However, whether or not one is more serious than another, they are all serious. They were planned. They were repeated over a long period of time. They resulted in a large amount of money being dishonestly received and I infer they would have continued had the agency not discovered the offender’s dishonest conduct.

22 I do not doubt that the offender knew that what he was doing was illegal and I consider that his use of the money that he dishonestly received in providing himself with a lifestyle of excessive consumption of intoxicating liquor, the use of prohibited drugs and gambling far beyond his means shows his knowledge that he did not need the money. Of course, and it is obvious, using the dishonestly received money to provide such a lifestyle does not lessen the offender’s responsibility for the offences.

23 As the offences are contrary to the law of the Commonwealth, I am required in determining appropriate sentences to impose upon the offender for the offences, to take into account the several factors set out in s 16A of the Crimes Act (Commonwealth) and any other relevant factor.

24 As to the factors outlined in s 16A subs 2 of the Act:

(a) I have outlined the offences and the circumstances.
(b) I note that the subject offences are the only offences to be considered.
(c) I consider that the subject offences form a series of criminal acts.
(d) I consider that the Department of Social Security and its successor and I suppose ultimately the tax payers of Australia were the victims of the subject offences.
(e) I have noted that the loss caused by the offences was $119,915.59, of which $6,500 has been recovered by deductions to the benefit to which the offender is paid and to which he is entitled.
(f) I have noted the offender’s contrition and I consider that his contrition to be genuine.
(g) I have noted that the offender pleaded guilty to the offences at the earliest appropriate opportunity.
(h) I have noted the offender’s ready and frank admissions when interviewed and I consider therefore that he co-operated with the agency in its investigation of the subject offences.
(j) I consider that the sentences that I will impose upon the offender will have a significant deterrent effect upon him.
(k) I have outlined the age, background, education, employments, state of health and character of the offender. I consider that, expecting that the Department of Corrective Services can properly and adequately manage the offender’s health problems, those problems are likely to make the offender’s life in prison more onerous for him that it would be if he did not have those problems and, therefore, I consider this is a mitigating factor.
(n) I accept that the offender has ceased to consume intoxicating liquor and to use prohibited drugs and has kerbed his gambling, that he has the support of his wife and that, on his release from prison, he will return to live with his wife and I consider that there are good prospects for the offender’s rehabilitation and that, therefore, he is unlikely to re-offend.
(p) I do not doubt that the offender's wife will be greatly affected by his imprisonment but this is not something that is unexpected or unusual, rather it is something expected and usual.

25 One factor not mentioned in s 16A of the Act is general deterrence. I see general deterrence as being important, it is not something that can be ignored or undervalued. People must be deterred from dishonestly receiving a social security benefit from the agency by knowing that doing so will, upon discovery, be punished by a sentence of imprisonment.

26 What, then, having regard to what I have said about the offences and the offender it is an appropriate sentence to impose upon him for each of the offences?

27 I have determined, balancing the factors to which I have referred, but putting aside the discount for the guilty pleas, that the sentences for each of the first two offences should be imprisonment for 12 months, which I reduce by 25%, that is by three months, to nine months and that the sentence for each of the other 11 offences should be imprisonment for two years, which I reduce by 25%, that is by six months, to one year six months.

28 As to totality, I consider that the overall or total sentence for the 13 offences should be imprisonment for three years.

29 As the total sentence does not exceed three years I will, as required by s 19AC of the Crimes Act (Commonwealth), order that the offender be released on recognisance after served one year six months of the period of three years.

30 Accordingly Robert John Barlow, for each of the 13 offences of dishonestly

receiving a social security benefit to which you were not entitled, to which you have pleaded that you are guilty, you are convicted. For the 13 offences I sentence you as follows:

(a) Offences 1 and 2 - Imprisonment for 9 months from 1/8/2007 to 30/4/2008. Each sentence to be served concurrently.
(b) Offences 3 to 9 inclusive - Imprisonment for 1 year, 6 months from 1/2/2008 to 31/7/2009. Each sentence to be served concurrently.
(c) Offences 10 to 13 inclusive - Imprisonment for 1 year, 6 months from 1/2/2009 to 31/7/2010. Each sentence to be served concurrently.

I order that the offender be released on 31/1/2009 on his entering into a recognisance, self in the sum of $500, without surety, to be of good behaviour for 1 year 6 months from 1/2/2009 to 31/7/2010.

31 I order, pursuant to s.21B of the Crimes Act (Commonwealth), that the offender make reparation in the amount of $113,415.59, such amount to be payable to the Commonwealth.

32 I order, pursuant to s.3ZL of the Crimes Act (Commonwealth), that the offender be fingerprinted.

33 Mr Barlow, I am required by s 16F of the Crimes Act (Commonwealth), to explain to you the sentences that I have imposed upon you. You have pleaded guilty to 13 offences. I agree with your guilty pleas. I have convicted you of the offences. I have imposed an overall or total sentence of three years for the 13 offences. I have ordered your release on 31 January 2009 after you have served one year six months of the period of three years. You will be subject to a recognisance, which is another word for a bond, for one year six months. You will required to be of good behaviour during the period of one year six months. If you offend again within the period of one year six months you will breach recognisance and you may be returned to prison to serve the balance of the total sentence.

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