R v Baker

• Jurisdiction: Australian Capital Territory
• Judge: Murrell CJ
• Judgment Date: 30 October 2019
• Docket Number: File Number: SCC 159 of 2019
• Court: Supreme Court of ACT
• Date: 30 October 2019

[2019] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Number: SCC 159 of 2019

The Queen

(Crown)

and

Darlene Baker

(Offender)

Representation:

Counsel

H von Forell (Crown)

S McLaughlin (Offender)

Cases Cited:

Cameron v The Queen[2002] HCA 6; 209 CLR 339

Johnsson v R[2007] NSWCCA 192

Payne v The Queen [2010] WASCA 177

Swoboda v Cobbo [2017] QDC 30

R v Hurst; Ex parte Commonwealth DPP [2005] QCA 25

R v Newton [2010] QCA 101; 199 A Crim R 288

R v Ruggiero (1998) 104 A Crim R 358

The Queen v Pham[2015] HCA 39; 256 CLR 550

Legislation Cited:

Crimes Act 1914 (Cth) pt IB, ss 4B(2), 16A, 21B

Criminal Code 1995 (Cth) s 134.2(1)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Obtain financial advantage by deception — Commonwealth offence — False declarations to Department of Human Services — Disability pension — Where the offender has no criminal record and strong prospects of rehabilitation — Intensive correction order — Reparation order.

Decision:

See [51]–[52].

Murrell CJ

1 The offender is to be sentenced for the offence that, between 31 July 2013 and 2 May 2018, she obtained a financial advantage by deception from the Department of Human Services, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).

2 The maximum penalty for this offence is 10 years' imprisonment. Pursuant to s 4B(2) of the Crimes Act 1914 (Cth) ( Crimes Act), the Court may impose a pecuniary penalty of 600 penalty units instead of, or in addition to, imprisonment.

Facts

3 From 2001, the offender began to receive the Disability Support Pension (the benefit) from the Commonwealth Department of Human Services (the Department).

4 She received the benefit for a back condition resulting from a serious motor vehicle accident that had occurred in 1996. The benefit was received from 2001 to about 2008. She ceased receiving the benefit for about four years before it was reinstated from approximately 2012.

5 The rate of benefit to which a recipient is entitled is affected by the recipient's employment income. Ordinarily, recipients must report their employment income every fortnight. In addition, they have an ongoing legal obligation to report any change of circumstance that causes a variation in their income.

6 Between 31 July 2013 and 2 May 2018, the offender failed to correctly declare the amount of her employment income and made various false declarations to the Department. During this period, she earned a total gross income of $235,372.03 from employment with three employers. However, she declared only $59,061.01 to the Department.

7 Her employment was almost continuous. Between 5 July and 8 December 2013, she was employed by Baby Bunting as a casual sales assistant. Between 9 December 2013 and approximately June 2015, she was employed by Just Better Care as a casual community support worker. From late 2015 until May 2018, she was employed by Goodwin Aged Care Services as a part-time carer.

8 Between 29 July 2013 and 22 April 2015, the offender reported her income to the Department on the usual fortnightly basis. However, when doing so in online declarations, she made 43 false under-declarations and two false declarations that she had earned no income in the relevant fortnight.

9 As a consequence of her false statements about receiving no income, the requirement for fortnightly reporting was removed by the Department, and the offender continued to receive benefits.

10 On 6 July 2016, the Department suspended the offender's benefits and raised an administrative debt against her.

11 On 12 July 2016, the offender contacted the Department by telephone, stating that she had commenced casual employment with Goodwin Aged Care Services on approximately 16 November 2015, she thought that she had been correctly reporting her income from that employer and she was “not sure why it was not showing up”. In the telephone call, the offender confirmed that she understood her notification obligations, the difference between gross and net income, how to declare her income in the correct fortnight, and the requirement to report fortnightly in the correct fortnight.

12 On 25 July 2016, the offender incorrectly declared that she had continuously received $755.25 in income per fortnight since 17 November 2015. She stated that she thought that she had added Goodwin Aged Care Services “with her app” but that “her app never works properly”. She was reminded of her ongoing legal obligation to report any change of circumstance.

13 As a result of her false reports, the offender obtained social security payments to which she was only partially entitled.

14 The Department detected the overpayment as a result of an internal review and data-matching within the Australian Taxation Office,

15 On 12 April 2018, the Department notified the offender of the overpayment and required her to provide information about her employment by 3 May 2018.

16 The offender did not respond to the notice, and her benefit was suspended on 3 May 2018.

17 As stated above, during the period of offending, the offender earned $235,372.03 gross income from employment, but declared only $59,061.01. She received a total of $108,814.85 in social security benefits, when she was eligible to receive only $25,093.21. In other words, she was overpaid $83,721.64.

18 On 28 May 2018, the Department again informed the offender of her overpayments. When asked why she had not declared her employment income correctly, the offender stated that she had not known that she had to report fortnightly and she thought that she had advised the Department of her income.

Objective seriousness

19 The considerations that inform the objective seriousness of this offence are:

• (a) The length of the ongoing course of offending conduct — almost 5 years.

• (b) The number of false statements made to the Department — around 50 false statements.

• (c) The total sum of the overpayment—$83,721.64; more than three times the amount to which the offender was actually entitled.

• (d) Although the offender was clearly put on notice in mid-2016 that she had been overpaid, she persisted in the deception. By indicating that she was receiving a regular income, she was placed on fortnightly “auto reporting”.

• (e) The motivation for the offending conduct — in this case, her motive was to meet daily financial needs, including payment of rent. For most of the period, the offender was living alone and paying a significant amount of rent. At one stage, she financially supported one of her children and three grand-children. There was no suggestion that she spent money on a lavish lifestyle.

• (f) The degree of planning — the offence was unsophisticated; it did not involve features such as the receipt of multiple benefits or the use of false identities or false bank accounts.

Subjective circumstances

20 The offender is 59 years of age. At the time of the offence, she was between 53 and 57 years of age.

21 She has no relevant criminal history.

22 She was born in rural NSW. She is one of five children. She had a supportive upbringing and enjoys good relationships with her siblings.

23 Her father died in a motor vehicle accident when she was 15 years old and her mother died more recently. Both her mother and grandmother suffered from a genetic condition which led to the development of motor neuron disease.

24 The offender is single. In earlier times, she was married (or lived in a de facto relationship) with the father of her four children for a significant period of time. During that relationship, she was subjected to physical and emotional domestic violence. She separated from her partner in about 1993. Thereafter, raised her four children as a single mother.

25 She enjoys good relationships with all her children, three of whom are present to support her in Court. For the past year, the offender has been living with the fourth child and with his three children aged between seven and 10 years. He is the sole parental carer for those children as they have been removed from the care of their mother in the context of alleged neglect by her.

26 The offender has assumed a strong maternal role in relation to her grandchildren. She assists in their daily care by, for example taking the children to school and to other appointments. She provides a female role model. The offender intends to reside with her son and three grandchildren until she can afford her own rental accommodation.

27 In relation to her former long-term partner, in about 2015 he was diagnosed with motor neuron disease. Although the couple had been separated for...