Regina (Commonwealth) v Virginia Jabreal - [2007] NSWDC 361

CITATION: Regina (Commonwealth) v Virginia Jabreal [2007] NSWDC 361

JUDGMENT DATE:
25 October 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Overall sentence of 18 months periodic detention with a non-parole period of 6 months.

CATCHWORDS: Criminal law - Sentence - Commonwealth offences - Social security fraud - Voluntary cessation of criminal activity - Need not greed - Payments used to support children - Late husband a compulsive gambler - Repayments voluntarily made - No prior convictions - First time in custody - Special circumstances - Periodic detention

LEGISLATION CITED: s 29B Crimes Act 1914 (Cth)
s135.1(5) Criminal Code (Cth)

CASES CITED: Regina v Burns [2007] NSWCCA 228
Regina v Hayman [2003] NSWCCA 138
Regina v Janceski NSWCCA, unreported, 1 March 2006
Regina v Martinsen [2003] NSWCCA 144
Regina v Molesworth [1999] NSWCCA 43
Regina v Purdon NSWCCA, unreported, 27 March 1997

PARTIES: Regina (Commonwealth)
Virginia Jabreal

FILE NUMBER(S): 07/21/3075

COUNSEL: Mr Nematalla for the offender

SOLICITORS: Ms McKenzie for the Commonwealth DPP

SENTENCE
1. I am sentencing Virginia Jabreal. She has been charged with three offences under s29B of the Crimes Act 1914 of the Commonwealth. In addition, she has been charged with three offences under s135.1(5) of the Criminal Code 1995 of the Commonwealth. Each of the s29B offences carries a maximum penalty of two years imprisonment, and the s135.1 offences carry a maximum penalty of five years imprisonment.

2. The s29B offences are offences shortly known as imposition on the Commonwealth. The offence comprises imposing upon a Commonwealth authority by an untrue representation with a view to obtaining a benefit. These cases usually concern benefits from the Social Security system, and this case is no exception.

3. The offences under s135.1 are shortly known as dishonesty causing a loss to another person knowing that the loss would occur. Section 135 of the Criminal Code effectively replaced s29B of the Crimes Act .

4. Briefly this is what Mrs Jabreal’s criminal behaviour was. She was paid various sorts of social security payments by the Commonwealth Services Delivery Agency, formerly known as the Department of Social Security. At the time of receiving various kinds of benefits, she was also employed by the St Johns Park Bowling Club. There is an obligation understandably to declare paid employment to the Commonwealth agency responsible for paying a pension or a benefit. Briefly, Mrs Jabreal failed to declare her income from her employment. Had she declared her income from her employment, which was an annual salary of over $30,000.00, that would have reduced or eliminated the payments which she was receiving from the Commonwealth Services Delivery Agency.

5. She undertook this deception over a period of some seven years. Her offending behaviour has been made the subject, as I said, of the six charges. The three charges under s29B refer to three periods. The first charge refers to the period 9 July 1998 to 14 September 1999. The second charge refers to the period 14…

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.

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Details

Case: [2007] NSWDC 361
Decision Date: 25 October 2007

CaseChat Overview and Summary

The appellant was convicted of social security fraud, with the total amount defrauded amounting to over $50,000. She had ceased her fraudulent activities voluntarily, and her actions were driven by the need to support her children following the death of her husband, a compulsive gambler. The appellant made voluntary repayments, had no prior convictions, and was in custody for the first time. The case came before the court to determine the appropriate sentence, considering the special circumstances and the appellant's genuine remorse.

The court was tasked with balancing the appellant's culpability with the extenuating circumstances of her actions. It considered her voluntary cessation of criminal activity, the necessity of her actions due to the late husband's compulsive gambling, and the fact that she used the defrauded funds to support her children. The court also took into account the appellant's lack of prior convictions, her first-time incarceration, and her voluntary repayments. The primary legal issue was whether the sentence should reflect the appellant's personal circumstances and the mitigating factors, or whether it should focus primarily on the seriousness of the offence.

The court determined that the special circumstances warranted a departure from the usual sentencing approach. It recognised the appellant's genuine remorse and the necessity of her actions to support her children. The court found that the need to support her children and the late husband's compulsive gambling were significant mitigating factors. The appellant's voluntary cessation of criminal activity and her lack of prior convictions were also considered favourably. After weighing these factors against the seriousness of the offence, the court imposed a sentence of 18 months periodic detention with a non-parole period of 6 months, reflecting both the need for punishment and the extenuating circumstances.

Orders

Orders of the court

Overall sentence of 18 months periodic detention with a non-parole period of 6 months.

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.

CITATION:	Regina (Commonwealth) v Virginia Jabreal [2007] NSWDC 361
JUDGMENT DATE:	25 October 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Overall sentence of 18 months periodic detention with a non-parole period of 6 months.
CATCHWORDS:	Criminal law - Sentence - Commonwealth offences - Social security fraud - Voluntary cessation of criminal activity - Need not greed - Payments used to support children - Late husband a compulsive gambler - Repayments voluntarily made - No prior convictions - First time in custody - Special circumstances - Periodic detention
LEGISLATION CITED:	s 29B Crimes Act 1914 (Cth) s135.1(5) Criminal Code (Cth)
CASES CITED:	Regina v Burns [2007] NSWCCA 228 Regina v Hayman [2003] NSWCCA 138 Regina v Janceski NSWCCA, unreported, 1 March 2006 Regina v Martinsen [2003] NSWCCA 144 Regina v Molesworth [1999] NSWCCA 43 Regina v Purdon NSWCCA, unreported, 27 March 1997
PARTIES:	Regina (Commonwealth) Virginia Jabreal
FILE NUMBER(S):	07/21/3075
COUNSEL:	Mr Nematalla for the offender
SOLICITORS:	Ms McKenzie for the Commonwealth DPP