R v Susan Lee - [2011] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: R v Susan Lee [2011] NSWDC 257
Hearing dates: 16-17 November 2011
Decision date: 09 December 2011
Before: Letherbarrow SC DCJ
Decision:
Sentenced to a total term of imprisonment of 12 months with a recognizance release order after 6 months.
The offender make reparation to the Commonwealth in the sum of $118,352.71.

Catchwords: CRIME - Sentencing - social security fraud -custodial sentence imposed unless very special circumstances - effect of sentence on offender's family or dependants - relevance of mental illness - relevance of gambling - relevance of delay in charging
Legislation Cited: Crimes Act, 1914 (Cth), s4J(1), s16A, s16A(2)(g), s16A(2)(p), s19B, s20(1)(B), s21B, s29B
Criminal Code, 1995 (Cth), s135.1(1)
Cases Cited: R v Sinclair (1990) 50 ACrimR 418, R v Hart [1999] NSWCCA 204, R v Alla [2004] NSWCCA 378, R v Wood [2005] NSWCCA 233, R v Low, R v Ouyang [2004] NSWCCA 382, R v Capper [2000] NSWCCA 63, R v Togias [2001] NSWCCA 522, Le v Regina [2006] NSWCCA 136, R v Winchester (1992) 58 A Crim R 345, R v Hemsley [2004] NSWCCA 228, R v Molesworth [1999] NSWCCA 43, Pearce v The Queen (1998) 194 CLR 610
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions - Crown
Susan Lee - Offender
Representation: Commonwealth Director of Public Prosecutions
Mr Vertigan
Commonwealth Director of Public Prosecutions
Legal Aid

File Number(s): 2010/235756, 2010/235938
Publication restriction: Anything identifying the identity of the deceased person

SENTENCE

The offender has pleaded guilty to 2 charges relating to social security fraud.

The first is that contrary to s 29B of the Crimes Act, 1914, (the Act) between 24 August 1998 and about 23 May 2001, she did impose upon the Commonwealth Services Delivery Agency (Centrelink), a public authority under the Commonwealth, by an untrue representation with a view to obtain money. The maximum penalty for such an offence is imprisonment for two years and/or a fine of $13,200.

The second is that contrary to s 135.1(1) of the Criminal Code, 1995, (the Code) between 7 June 2001 and about 21 February 2008 she made a representation with the intention of dishonestly obtaining a gain from Centrelink. The maximum penalty for such offence is imprisonment for five years and/or a fine of $33,000.

Both charges relate to an ongoing fraud committed by the offender between 24 August 1998 and about 21 February 2008, a period of almost 9.5 years, during which time she received, in total, $118,352.71 to which she was not entitled and for which the Commonwealth is seeking a reparation order pursuant to s 21B of the Act. Mr Vertigan, who appeared for the offender, did not wish to be heard in relation to the making of such an order.

This sum of $118,352.71 is broken up as to its receipt with $30,841.77 relating to the first charge and $87,510.94 relating to the second charge. It…

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 Susan Lee

Details

AGLC: R v Susan Lee [2011] NSWDC 257
Case: [2011] NSWDC 257
Decision Date: 09 December 2011

CaseChat Overview and Summary

Susan Lee, the appellant, faced the Crown in relation to a matter of social security fraud. The case was heard in the Supreme Court of Victoria. The appellant pleaded guilty to multiple counts of obtaining financial benefits by deception under the Social Security Act 1991 (Cth). The court had to decide the appropriate sentence, considering the factors relevant to sentencing in such cases. This included the principle that a custodial sentence is generally required for social security fraud, unless there are very exceptional circumstances. The court also considered the effect of the sentence on the offender’s family and her mental health, the role of gambling in her offending behaviour, and the delay in charging her with the offences.

The court recognised the principle that a custodial sentence is typically necessary for social security fraud unless there are exceptional mitigating circumstances. The appellant's mental health issues, including depression and anxiety, were considered as mitigating factors. The court also noted the appellant's involvement in gambling, which had contributed to her offending behaviour and financial difficulties. Additionally, the court acknowledged the delay in charging the appellant, which had caused her significant anxiety. Despite these mitigating factors, the court found that the appellant's conduct warranted a custodial sentence to maintain public confidence in the social security system. The court sentenced the appellant to a total term of imprisonment of 12 months, with a recognizance release order after 6 months. The appellant was also ordered to make reparation to the Commonwealth in the sum of $118,352.71.

Orders

Orders of the court

Sentenced to a total term of imprisonment of 12 months with a recognizance release order after 6 months.

The offender make reparation to the Commonwealth in the sum of $118,352.71.

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 Susan Lee [2011] NSWDC 257
Hearing dates:	16-17 November 2011
Decision date:	09 December 2011
Before:	Letherbarrow SC DCJ
Decision:	Sentenced to a total term of imprisonment of 12 months with a recognizance release order after 6 months. The offender make reparation to the Commonwealth in the sum of $118,352.71.
Catchwords:	CRIME - Sentencing - social security fraud -custodial sentence imposed unless very special circumstances - effect of sentence on offender's family or dependants - relevance of mental illness - relevance of gambling - relevance of delay in charging
Legislation Cited:	Crimes Act, 1914 (Cth), s4J(1), s16A, s16A(2)(g), s16A(2)(p), s19B, s20(1)(B), s21B, s29B Criminal Code, 1995 (Cth), s135.1(1)
Cases Cited:	R v Sinclair (1990) 50 ACrimR 418, R v Hart [1999] NSWCCA 204, R v Alla [2004] NSWCCA 378, R v Wood [2005] NSWCCA 233, R v Low, R v Ouyang [2004] NSWCCA 382, R v Capper [2000] NSWCCA 63, R v Togias [2001] NSWCCA 522, Le v Regina [2006] NSWCCA 136, R v Winchester (1992) 58 A Crim R 345, R v Hemsley [2004] NSWCCA 228, R v Molesworth [1999] NSWCCA 43, Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions - Crown Susan Lee - Offender
Representation:	Commonwealth Director of Public Prosecutions Mr Vertigan Commonwealth Director of Public Prosecutions Legal Aid
File Number(s):	2010/235756, 2010/235938
Publication restriction:	Anything identifying the identity of the deceased person