Charges:

The accused was sentenced at the Sunshine Magistrates’ Court last October by Magistrate Capel after pleading guilty to two charges of fraudulently obtaining benefits (1 X LOE and 1 X LOEC).

Sentence:

Magistrate Capel sentenced the accused to a 12 month CCO with condition to perform 200 hours of unpaid work.  The sentence was imposed with conviction and the accused was ordered to pay compensation of $87,451.25 and costs of $1,986.

Appeal:

It was the element of having a conviction recorded which was the issue of the appeal.

Remarks:

After hearing a summary of the offending and being provided with a quick back ground on how LOE and LOEC benefits worked within TAC the defence spoke to their previously lodged submissions.  The defence submissions relied on three points.  Firstly one of the co-offenders of the accused (the original investigation revealed three offenders had effectively fraudulently obtained benefits from TAC in the same manner, who were all working for the same employer and were known to each other.  One of these offenders, whose offending was very similar to the accused, had been sentenced by Magistrate Smith to a CCO but without conviction). The defence submitted that for the reason of parity the accused should have been sentenced similarly – without conviction.  There second point was that as the accused was on a student visa but applying for permanent residency a conviction would significantly impact this.  Lastly, should the accused be successful in the residency application a conviction will greatly hamper any ability to obtain employment in areas where the accused has received formal training in as part of the student visa.

At the conclusion of defence submissions, the prosecutions submissions were submitted that despite what the “co-offender” received, a conviction was still appropriate in the circumstances and it was required to appropriately send a message of general deterrence.  Given the large amount of the fraud, the nature of her fabricating per-accident employment records and the continued act of providing certificates of capacity being a positive act not merely an omission.

After hearing all submissions the Judge announced his decision.  He noted what was entailed in the offending and further identified that the co-offender’s offending circumstances were very similar.  He noted that the co-offender’s disposition was one without conviction and that the co-offender was also now the accused’s husband.  He identified that the appeal centred around the recording of a conviction and noted each parties submissions and that from the defence it was an issue of parity with the co-accused as well as the effect it would have on her impending immigration.

The Judge then noted that the Sentencing Act requires consideration of three factors when deciding whether or not to record a conviction.  1. The circumstances of the offending; 2. The antecedents and background of the offender; and 3. The impacts on the offender of recording a conviction.

In addressing each of the three factors it was noted; 1. This is serious fraud on the TAC and in effect fraud on all drivers.  The quantum involved is significant, the fraud was sophisticated in the fabrication of documents and the duration of the offending was significant.  2. The accused has no prior offences, is of exemplary character, there has been no offending since, there are no drug or alcohol issues and the accused has a strong supportive family background.  3. The Judge then noted the real issue was that of an impact of recording of a conviction on the offender – he did accept that a conviction would have a deleterious effect on the accused’s ability to stay in Australia and also effect the ability to get and maintain gainful employment.

The Judge noted that he could see no significant differences in the offending between this accused and the co-offender who received a non-conviction disposition, something the prosecution rightfully conceded, and in fact the co-offender dealt with rather leniently.  But in the circumstances the accused could feel aggrieved by this difference.

Ultimately the Judge upheld the appeal, set aside the orders of the Magistrate and instead imposed the same Community Corrections Order with the same condition but without conviction.  The Judge also ordered that the accused pay TAC compensation as previously ordered and pay TAC the costs previously sought.

Restitution:	$87,451.25
Donations:	$
Disbursements:	$
Statutory Costs:	$
Professional Costs:	$1,986

Stay: