R v Wendy Lynette Neil - [2011] NSWDC 78

District Court

New South Wales

Medium Neutral Citation: R v Wendy Lynette NEIL [2011] NSWDC 78
Decision date: 01 July 2011
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
In respect of each of the 10 offences against s 29B of the Crimes Act 1914, sentences of 18 months imprisonment. In respect of the offence against s 135.1(5) of the Criminal Code 1995 a sentence of 2 years imprisonment. In respect of each sentence I make Intensive Correction Order.

Catchwords: CRIMINAL LAW - Commonwealth offences - obtain benefits from the Commonwealth by a false representation - dishonestly cause a loss to the Commonwealth - failed to declare employment while receiving Centrelink payments - over-payment detected by Centrelink - declined to be interviewed by Centrelink but sent a letter admitting guilt - started to repay the Commonwealth before being charged - pleas of guilty at first available opportunity - long term untreated psychological and psychiatric problems - embarrassed and ashamed about actions - pre-sentence and psychological reports - no criminal history - Commonwealth submission that a sentence other than full-time imprisonment would involve appellable error - suspended sentence not appropriate - voluntarily ceased criminal behaviour - repayment plan in place and significant amount of money repaid - delay between detection of behaviour and laying of charges - sentence of imprisonment to be served by way of intensive correction order - reasons for this course
Legislation Cited: Crimes Act 1914 s 29B
Crimes (Administration of Sentences) Regulation 2008 regs 175, 178
Criminal Code 1995 s 135.1
Crimes (Sentencing Procedure) Act 1999 s 7
Cases Cited: Regina v Burns [2007] NSWCCA 228
R v McGuiness [2008] NSWCCA 80
Category: Sentence
Parties: Regina
Wendy Lynette Neil
Representation: Mr Krisenthal for Ms Neil
Ms Guillen for the Commonwealth Director of Public Prosecutions
Mr Lynch for Ms Neil

File Number(s): 2009/252300; 2009/272161

SENTENCE

1. Wendy Lynette Neil systematically defrauded the Commonwealth Government of over $75,000 over a period of some eleven years. From 1993 to 2004 whilst she was deriving income from employment she was also receiving certain Commonwealth benefits to which she was either not entitled or to which she was entitled to receive at a smaller rate.

2. As a result of that behaviour she has been charged with ten offences against s 29B of the Crimes Act 1914 of the Commonwealth and one offence against s 135.1(5) of the Criminal Code of the Commonwealth.

3. The Crimes Act offences all assert that Wendy Neil by a false representation obtained benefits from the Commonwealth. She imposed upon the Department of Social Security or its successor by an untrue representation by omission with a view to obtaining various benefits. The maximum penalty for crimes committed against s 29B of the Crimes Act is two years imprisonment.

4. The one offence against s 135.1 of the Criminal Code claims that Ms Neil dishonestly caused a loss to the Commonwealth knowing that such a loss would occur in that she obtained certain benefits when she was in receipt…

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 Wendy Lynette Neil

Details

AGLC: R v Wendy Lynette Neil [2011] NSWDC 78
Case: [2011] NSWDC 78
Decision Date: 01 July 2011

CaseChat Overview and Summary

Wendy Lynette Neil was charged with multiple offences under the Crimes Act 1914 and the Criminal Code 1995, including obtaining benefits by false representation and causing a loss to the Commonwealth. The matter was heard in the Federal Circuit Court of Australia, where the defendant pleaded guilty at the earliest opportunity. The crux of the dispute lay in the appropriate sentence for Neil, considering her psychological conditions and the circumstances surrounding the offence.

The court had to determine whether the sentence should be imprisonment, taking into account the Commonwealth's submission that any sentence other than full-time imprisonment would be an error capable of appeal. The defence argued that a suspended sentence was inappropriate because Neil had voluntarily ceased her criminal behaviour and had already begun repaying the overpaid benefits. The court also considered the delay between the detection of the offence and the laying of charges, as well as the defendant's psychological state and her efforts to repay the money.

In its reasoning, the court found that while Neil's actions warranted a custodial sentence, the nature of the offences and the circumstances surrounding them justified a non-custodial alternative. The court concluded that an intensive correction order would be an appropriate sentence. This decision took into account the defendant's psychological issues, her proactive steps in repaying the money, and the delay in prosecution. Consequently, the court ordered that each of the 10 offences under the Crimes Act 1914 be met with a sentence of 18 months imprisonment, and the offence under the Criminal Code 1995 with a sentence of 2 years imprisonment, to be served by way of an intensive correction order.

The court made it clear that the intensive correction order was the most suitable course of action given the unique circumstances of the case. This decision ensured that Neil would serve her sentence in a manner that considered her psychological health and her efforts towards rectification, while also addressing the seriousness of the offences committed.

Orders

Orders of the court

In respect of each of the 10 offences against s 29B of the Crimes Act 1914, sentences of 18 months imprisonment. In respect of the offence against s 135.1(5) of the Criminal Code 1995 a sentence of 2 years imprisonment. In respect of each sentence I make Intensive Correction Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Wendy Lynette NEIL [2011] NSWDC 78
Decision date:	01 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	In respect of each of the 10 offences against s 29B of the Crimes Act 1914, sentences of 18 months imprisonment. In respect of the offence against s 135.1(5) of the Criminal Code 1995 a sentence of 2 years imprisonment. In respect of each sentence I make Intensive Correction Order.
Catchwords:	CRIMINAL LAW - Commonwealth offences - obtain benefits from the Commonwealth by a false representation - dishonestly cause a loss to the Commonwealth - failed to declare employment while receiving Centrelink payments - over-payment detected by Centrelink - declined to be interviewed by Centrelink but sent a letter admitting guilt - started to repay the Commonwealth before being charged - pleas of guilty at first available opportunity - long term untreated psychological and psychiatric problems - embarrassed and ashamed about actions - pre-sentence and psychological reports - no criminal history - Commonwealth submission that a sentence other than full-time imprisonment would involve appellable error - suspended sentence not appropriate - voluntarily ceased criminal behaviour - repayment plan in place and significant amount of money repaid - delay between detection of behaviour and laying of charges - sentence of imprisonment to be served by way of intensive correction order - reasons for this course
Legislation Cited:	Crimes Act 1914 s 29B Crimes (Administration of Sentences) Regulation 2008 regs 175, 178 Criminal Code 1995 s 135.1 Crimes (Sentencing Procedure) Act 1999 s 7
Cases Cited:	Regina v Burns [2007] NSWCCA 228 R v McGuiness [2008] NSWCCA 80
Category:	Sentence
Parties:	Regina Wendy Lynette Neil
Representation:	Mr Krisenthal for Ms Neil Ms Guillen for the Commonwealth Director of Public Prosecutions Mr Lynch for Ms Neil
File Number(s):	2009/252300; 2009/272161