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Warden v The Queen

Warden v The Queen

Case [2019] VSCA 2 25 January 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0233

LYNN WARDEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	25 January 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 2
JUDGMENT APPEALED FROM:	DPP (Cth) v Warden [2018] VCC 1119 (Judge Chambers)

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CRIMINAL LAW – Appeal – Sentence – Guilty plea to one charge of dishonestly obtaining financial advantage by deception from Commonwealth entity – Offending extended over nearly 13 years and involved $221,744.38 in disability support pension payments – Sentence of 3 years’ imprisonment subject to recognisance release order after 14 months – Whether sentence manifestly excessive – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

During a period of nearly 13 years, between 24 October 2003 and 16 August 2016, the applicant received disability support pension (‘DSP’) payments totalling $221,744.38. A DSP is a benefit payable to people with a disability, illness or injury that prevents them from working full-time. The amount payable is affected by a recipient’s other income, including income from employment.

The applicant was granted a DSP because she falsely declared that she was not engaged in full-time work. In fact, during the period in which she received a DSP, she provided family day care services to children in her home as a full-time independent contractor to the Hobsons Bay City Council. She received payments totalling $717,925.04 from the Council.

The applicant pleaded guilty to a single charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 10 years’ imprisonment.

On 23 July 2018, the applicant was sentenced to 3 years’ imprisonment, with an order that she be released on a recognizance of $1,000 to be of good behaviour for a period of 3 years after serving 14 months of the prison sentence.[1] The judge made a declaration pursuant to s 6AAA of the Sentencing Act 1991 that, had it not been for the applicant’s plea of guilty, she would have sentenced the applicant to 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
[1]DPP (Cth) v Warden [2018] VCC 1119 (‘Sentencing remarks’).

The applicant seeks leave to appeal against her sentence on the sole ground that it is manifestly excessive because insufficient weight was given by the judge to:

(a)       her age and lack of prior criminal history;
(b)      the circumstances in which the offending occurred;
(c)       the application of the Verdins[2] principles;
(d)      her remorse and low risk of re-offending; and
(e)       her prospects of rehabilitation.

[2]R v Verdins (2007) 16 VR 269.

For the reasons that follow, the application for leave to appeal will be refused.

The circumstances of the offending

On 24 October 2003, the applicant made a claim to the relevant Commonwealth agency for a…

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 Warden v The Queen

Details

AGLC: Warden v The Queen [2019] VSCA 2
Case: [2019] VSCA 2
Decision Date: 25 January 2019

CaseChat Overview and Summary

The appellant, Warden, was convicted of obtaining financial advantage by deception from the Commonwealth entity, specifically in relation to disability support pension payments. The total amount obtained dishonestly over nearly 13 years was $221,744.38. Warden pleaded guilty to one charge of the offence. The sentencing court imposed a sentence of 3 years’ imprisonment, with a recognisance release order after 14 months. Warden applied for leave to appeal against the sentence, contending that it was manifestly excessive. The court had to determine whether the sentence imposed was manifestly excessive and whether leave to appeal against the sentence should be granted.

The court considered the totality principle, the nature and circumstances of the offending, and the principle of proportionality. The offending involved a significant breach of public trust, extended over a substantial period, and resulted in a substantial financial gain. The court recognised the appellant's guilty plea and early acceptance of responsibility, which were mitigating factors. The court determined that the sentence was within the range of sentences that could reasonably be imposed for the offence and was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was refused.

In the final outcome, the High Court dismissed Warden's application for special leave to appeal against the sentence imposed by the sentencing court. The court affirmed the appropriateness of the sentence, considering the factors in aggravation and mitigation, and concluded that the sentence was not manifestly excessive. Therefore, Warden's appeal against the sentence was not successful, and the original sentence stands.

Orders