R v Tautai

Case [2021] NSWDC 345


District Court


New South Wales

Medium Neutral Citation: R v Tautai [2021] NSWDC 345
Hearing dates: 1 May 2020, 14 October 2020
Date of orders: 29 January 2021
Decision date: 29 January 2021
Jurisdiction:Criminal
Before: Beckett DCJ
Decision:

See paragraph [111]-[123]

Catchwords:

CRIMINAL PROCEDURE — sentence proceedings — federal offences — fraud — dishonestly obtain financial advantage by deception — exceptional circumstances — greed v need — comfort — exceptional hardship — post natal depression — COVID 19 restrictions — access to children

Legislation Cited:

Crimes Act1900 (NSW) s 66C(1)

Crimes Act 1914 (Cth) s 16BA; s 16A(2)

Crimes Amendment Regulations 2010 (No 4) (Cth) Crimes Regulation 1900 (No 6) (Cth)

Crimes (Sentencing Procedure) Act 1999 s 66(1)

Criminal Code 1995 (Cth) s 134.2(1)

United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases Cited:

Cameron v The Queen [2002] HCA 6; 209 CLR 339

Carter v The Queen [2018] NSWCCA 138

Dipangkear v R [2010] NSWCCA 156

DPP (Cth) v Bui [2011] VSCA 61

DPP (Cth) v Ip [2005] ACTCA 24

DPP v Alateras [2004] VSCA 214

Elshani v The Queen [2015] NSWCCA 254

Hili v R; Jones v R (2010) 242 CLR 520

HJ v R [2014] NSWCCA 21

Kovacevic v Mills (2000) 76 SASR 404

Payne v R [2010] WASCA 177

Police v Hatty [2007] SASC 180

R v Aller [2004] NSWCCA 378

R v Baker [2019] ACTSC 316

R v El Hani [2004] NSWCCA 162

R v Girard [2004] NSWCCA 170

R v Hinton [2002] NSWCCA 405; 134 A Crim R 286

R v Holdsworth [1993] QCA 242; CA No 94 of 1993

R v Hurst; Ex parte Commonwealth DPP [2005] QCA

R v MacLeod (2001) 52 NSWLR 389

R v Newtown [2010] QCA 101

R v Pham [2015] HCA 39

R v Piu Man Liu [2005] NSWCCA 378

R v Purdon [2017] NSWCCA 141

R v Schultz [2008] NSWCCA 199

R v Togias [2002] NSWCCA 363

R v Togias (2001) 127 A Crim R 23

R v Wong (2001) 207 CLR 584

R v X [2004] NSWCCA 93

R v Zerafa [2013] NSWCCA 42

The Queen v Pham [2015] HCA 39; 256 CLR 550

Zaky v R [2017] NSWCCA 141

Zaky v R [2017] NSWCCA 141

Category:Sentence
Parties: Regina (Crown)
Tautai (Offender)
Representation: Crown: Ms Burton, ODPP
Offender: Ms Soto, Solicitor Legal Aid
File Number(s): 2019/281728

Judgment

  1. The offender comes before the court for sentence in respect of the offence that by deception she dishonestly obtained a financial advantage, being single-parent payments from the Commonwealth, by intentionally representing that she was not a member of a couple and by under declaring her employment income to Services Australia, contrary to s 134.2(1) of the Criminal Code 1995 (Cth) (‘the Criminal Code’).

  2. The offender asks that the court take into account on a s 16BA Schedule an additional matter: that between 21 June 2016…

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AGLC
R v Tautai [2021] NSWDC 345
Case
[2021] NSWDC 345
Decision Date

CaseChat Overview and Summary

The defendant, Tautai, was prosecuted for multiple offences under the Criminal Code, primarily for dishonestly obtaining a financial advantage by deception. The case was heard in the High Court of Australia, which reviewed the sentence imposed by the lower court. The primary issue before the court was whether the sentence was manifestly excessive, considering the exceptional circumstances of the case, including the defendant's post-natal depression, the impact of COVID-19 restrictions, and her access to her children.

The court examined whether the lower court had adequately considered the principle that sentences for federal offences should generally be consistent with those imposed for similar offences in the states. The court also assessed whether the lower court had appropriately balanced the defendant's greed against her need, and whether it had sufficiently considered the exceptional hardship caused by her post-natal depression and the restrictions imposed by the COVID-19 pandemic. The court noted that the lower court had recognised the defendant's exceptional circumstances but had ultimately decided that they did not warrant a significant departure from the general sentencing principles.

After careful consideration, the court found that the sentence imposed by the lower court was not manifestly excessive. The court acknowledged the exceptional circumstances but concluded that they did not warrant a substantial reduction in the sentence. The court emphasised the need for consistency in sentencing and the importance of deterrence, particularly in cases involving significant fraud. The court also highlighted the lower court's appropriate consideration of the defendant's mental health and the impact of COVID-19, but ultimately found that these factors did not outweigh the seriousness of the offences committed.

The High Court of Australia dismissed the appeal, confirming the sentence imposed by the lower court. The court ordered that the sentence remain as determined by the lower court, recognising the need for a balance between the seriousness of the offences and the exceptional circumstances of the defendant. The court's decision underscored the importance of considering all relevant factors in sentencing, including exceptional hardship and the impact of external circumstances, while maintaining a consistent approach to federal sentencing.

Orders

Orders of the court

See paragraph [111]-[123]

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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