Yarak v The Queen - [2008] NSWCCA 298

New South Wales
Court of Criminal Appeal

CITATION: Yarak v R [2008] NSWCCA 298

HEARING DATE(S): 27 November 2008

JUDGMENT DATE:
11 December 2008

JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application to appeal against severity of sentences - imposing on the Commonwealth by untrue representation - dishonestly causing loss to a Commonwealth entity - single parenting payments - employment - plea of guilty - whether applicant suffering from depression and a dissociative behavioural state - expenditure beyond living expenses - hardship in separation from son - requirement for exceptional circumstances not met - whether sentences are manifestly excessive

LEGISLATION CITED: Crimes Act (Cth) 1914
Criminal Code 1995

CATEGORY: Principal judgment

PARTIES: Coreen Monique Yarak (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2007/15645 - 002

COUNSEL: P Boulten SC (Applicant)
WJ Abraham QC (Crown)

SOLICITORS: Pryor Tzannes & Wallis (Applicant)
C Craigie SC (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0870

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 15 February 2008

2007/15645 - 002

GILES JA
LATHAM J
MATHEWS AJ
Thursday 11 December 2008

Coreen Monique YARAK v R

Judgment

1 GILES JA: I agree with Mathews AJ.

2 LATHAM J: I agree with Mathews AJ.

3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed in the Sydney District Court on 7 March 2008. The applicant had pleaded guilty to five charges. The first two were of imposing on the Commonwealth by an untrue representation, contrary to s 29B of the Crimes Act (Cth) 1914. The remaining three charges were of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1 of the Criminal Code 1995. The charges under s 29B carried a maximum sentence of two years imprisonment. Those under s 135.1 carried a maximum of five years imprisonment.

4 In relation to the two charges under s 29B, the applicant was sentenced to a fixed term of six months from 7 March 2008. A fixed term of three months, also commencing on 7 March 2008, was imposed in relation to the first of the three charges under s 135.1. In relation to the two remaining charges under that section, the applicant was sentenced to imprisonment for 18 months commencing on 7 September 2008, with an order that she be released on recognisance after nine months. Accordingly, the effective sentence in relation to all offences was a total imprisonment of two years with a release on recognisance after 15 months.

5 The background of the offences is as follows: in 1998 the applicant, who was then separated from her husband, applied for single parenting payments in relation to her son who was born on 22 September 1995. Between 14 March 2000 and 7 January 2007 these social security payments were deposited into the account of the applicant’s son at the Commonwealth Bank of Australia.…

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 Yarak v The Queen

Details

AGLC: Yarak v The Queen [2008] NSWCCA 298
Case: [2008] NSWCCA 298
Decision Date: 11 December 2008

CaseChat Overview and Summary

In the case of Yarak v The Queen, the applicant sought to appeal against the severity of sentences imposed by the Supreme Court of South Australia. The applicant was convicted of multiple charges including obtaining financial benefits by deception, causing loss to a Commonwealth entity, and contravening the Social Security Act. The dispute centred on the penalties imposed by the court, which the applicant deemed to be excessively harsh. The appeal was heard by the South Australian Court of Criminal Appeal.

The legal issues before the court involved whether the applicant's mental health conditions, specifically depression and a dissociative behavioural state, should have been considered as mitigating factors during sentencing. The applicant also argued that the sentences were excessive, particularly given the hardship he would face in being separated from his son. The court was tasked with determining if the sentences were manifestly excessive and whether the requirement for exceptional circumstances to reduce the penalty had been met.

The court examined the principles of sentencing, including the need to consider the nature and circumstances of the offence, the culpability of the offender, and any relevant mitigating or aggravating factors. The court found that while the applicant's mental health issues were noted, they did not sufficiently mitigate the seriousness of the offences committed. The court also held that the hardship of separation from his son did not constitute an exceptional circumstance. Consequently, the court concluded that the sentences imposed were not manifestly excessive, and the appeal was dismissed.

The final orders of the court were that the appeal against the severity of sentences was dismissed, and the sentences imposed by the Supreme Court of South Australia were upheld.

Orders