Regina v Killen - [2005] NSWCCA 17

Reported Decision:
152 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION:
REGINA v KILLEN [2005] NSWCCA 17

HEARING DATE(S): 30 November 2004

JUDGMENT DATE:

9 February 2005

JUDGMENT OF:
James J at 1; Hidden J at 2; Bell J at 23

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - Defrauding the Commonwealth - 21 months imprisonment - Wholly suspended - Defrauding of social security system over a period of years - Unusual subjective case - Alcoholism arising from sexual abuse as a teenager and related health problems - Whether exceptional circumstances justifying disposition other than full time custodial sentence to be served

LEGISLATION CITED:

Crimes Act 1914 (C'th)

CASES CITED:
R v Howe [2000] NSWCCA 405
R v Purdon (NSWCCA 27 March 1997 unrep)
R v Aller [2004] NSWCCA 378
R v Henry (1999) 46 NSWLR 346

PARTIES:
Regina (applicant)
Joanne Maree Killen (respondent)

FILE NUMBER(S):
CCA 2004/2323

COUNSEL:
M. Allnutt (Crown)
A. Webb (respondent)

SOLICITORS:
Commonwealth DPP (applicant)
Legal Aid Commission (respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/61/0055

LOWER COURT JUDICIAL OFFICER:
Graham DCJ

2004/2323

JAMES J
HIDDEN J
BELL J
9 February 2005

REGINA v Joanne Maree KILLEN

Judgment

1 JAMES J: I have read Hidden J’s judgment in draft and have concluded that, for the reasons given by his Honour, the Crown appeal against sentence should be dismissed. I have reached that conclusion, only after considerable hesitation. The conclusion depends very much on the peculiar combination of circumstances in this case and the decision of this Court should not be regarded as lending any support to a general proposition that a person who received social security benefits to which he or she was not entitled can avoid an immediately effective custodial sentence because of a belief that the benefits were needed in order to pay for alcohol or drugs to which the person was addicted.

2 HIDDEN J: This is an appeal by the Commonwealth Director of Public Prosecutions against a sentence passed upon the respondent, Joanne Maree Killen, in the District Court after she pleaded guilty to a charge of defrauding the Commonwealth, an offence under s29D of the Crimes Act 1914 (C’th) which carries a maximum sentence of ten years imprisonment. She was sentenced to imprisonment for twenty-one months from the date on which sentence was passed, 19 August 2004, but the sentencing judge directed, pursuant to s21(1)(b) of the Act, that she be released immediately upon recognisance. The recognisance was conditioned that she be of good behaviour for the period of the sentence and accept the supervision of the Probation and Parole Service. Pursuant to s21B of the Act, his Honour ordered her to pay reparation to the Commonwealth in the sum of $95,852.09.

3 On 15 September 1987 the respondent gave birth to a daughter, and from October of that year she began to receive a sole parent pension and related benefits from the Department of Social Security, now Centrelink.…

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 Regina v Killen

Details

AGLC: Regina v Killen [2005] NSWCCA 17
Case: [2005] NSWCCA 17
Decision Date: 9 February 2005

CaseChat Overview and Summary

The case of Regina v Killen involved an appeal by the Crown against the sentence imposed on the respondent, Killen, who had been found guilty of defrauding the Commonwealth. The fraud pertained to the social security system, which Killen had manipulated over a number of years. The trial judge had imposed a sentence of 21 months imprisonment, which was wholly suspended. The Crown sought a more punitive sentence, arguing that the suspended sentence did not adequately reflect the gravity of the offence or serve as a sufficient deterrent.

The legal issues before the court revolved around the principles of sentencing for fraud and whether the trial judge had appropriately considered the circumstances of the offender. The Crown argued that the trial judge had failed to adequately weigh the culpability and the impact of the fraud on the social security system. The defence, on the other hand, contended that the trial judge had properly taken into account Killen's unique personal circumstances, including his history of alcoholism stemming from sexual abuse in his teenage years and related health problems, which had contributed to his offending behaviour.

The court considered the principle that a sentence should reflect both the culpability of the offender and the need for general and specific deterrence. It acknowledged the severity of the fraud and the harm caused to the social security system. However, the court also gave significant weight to Killen's personal circumstances, particularly his history of alcohol abuse and its root cause in past sexual abuse. The court determined that these factors constituted exceptional circumstances that justified a disposition other than a full-time custodial sentence to be served. The court concluded that the original sentence, which was wholly suspended, was appropriate given the unique nature of Killen's case.

The final orders of the court were to uphold the trial judge's sentence of 21 months imprisonment, wholly suspended. The Crown's appeal was dismissed, and the sentence remained as originally imposed.

Orders