REGINA v LOPEZ [1999] NSWCCA 245

New South Wales Court of Criminal Appeal CITATION : REGINA v LOPEZ [1999] NSWCCA 245 FILE NUMBER(S) : CCA 60065/99 HEARING DATE(S) : 12 March 1999 JUDGMENT DATE : 12 March 1999

REGINA

PARTIES : v

EDUARDO LOPEZ (the appellant) JUDGMENT OF : Spigelman CJ at 1; Abadee J at 24; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0012 LOWER COURT JUDICIAL OFFICER : Morgan DCJ

COUNSEL : Mr W Roser (Crown) Mr M Ainsworth (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions Appellant unrepresented CATCHWORDS : Sentence appeal; social security fraud; offender desisting voluntarily before discovery; significance; contrition; significance of agreement to repay; later notification of charges ACTS CITED : Crimes Act 1914 (Cth) Crimes Act 1912 R v Jennifer Rose Purdon (unreported, NSW CCA 27 March 1977) CASES CITED: R v Christian Lawrence Blair (unreported, NSW CCA 17 December 1977) Winchester 58 A Crim R 345 DECISION : Appeal allowed; sentence reduced

IN THE COURT OF CRIMINAL APPEAL 60065/99 SPIGELMAN CJ ABADEE J ADAMS J FRIDAY 12 MARCH 1999

REGINA v EDUARDO LOPEZ

JUDGMENT

1 SPIGELMAN CJ: I call on Adams J to deliver the first judgment. 2 ADAMS J: The appellant, Eduardo Lopez, was convicted in the District Court at Campbelltown on 11 February 1999, upon his pleas of guilty, to four counts of imposing upon the Commonwealth under s 29B of the Crimes Act 1914 (Cth). The maximum penalty under that section for each offence is imprisonment for two years. Her Honour Judge Morgan sentenced the appellant to six months imprisonment on each count, ordering that the sentences were to be served concurrently. 3 The substance of the Crown case was that the appellant, during most of the period from 1 January 1992 to 28 February 1996, was in receipt of two payments from the Department of Social Security, one of which he was entitled to but the other of which he was not and which he obtained under the false name, for relevant purposes, of Eduardo Chavez. The double payments appear to cover the periods 3 August 1992 to 30 June 1994, 17 March 1995 to 14 September 1995 and December 1995 to 23 February 1996. It was not disputed that the total amount overpaid was $23,891.66. 4 The appellant, who was twenty-two years old when the frauds commenced had been born in Peru and came to Australia in 1992. Between November 1991 and February 1992 whilst visiting his family there he met and married his first wife but returned to Australia without her. He was undertaking studies at TAFE in accounting. He was unable to find employment although he was prepared to study part time. He could not afford to bring his wife from Peru to Australia, nor to pay immigration expenses and other incidental payments relating to obtaining a visa for her. Her Honour adverted to his statement "that he needed the money" in terms to which, to my mind, suggest that her Honour considered that he did act out of need rather than greed. Certainly, there was nothing in the evidence to suggest the contrary. He obtained employment in July 1996 and has remained in employment since that time. About a year after his first wife came to Australia in 1995 they were divorced. He has since remarried and is presently supporting his wife. 5 The offences were discovered by a computer match performed, as I understand it, routinely by the Commonwealth Services Delivery Agency. On 20 March 1997 the appellant declined the invitation to participate in a taped record of interview but, after being cautioned, said "...I admit that I have done what you have said. I do not wish to say any more. It will only cause trouble." It seems, however, that despite this admission and his desire to say nothing further, his denial, of course, that he had claimed a benefit using the name Chavez was a lie. However, I do not think that this is material in light of his initial candid admission. 6 The appellant said this about the offences during his evidence before the learned sentencing judge- "Bringing my wife here was very important. I wasn't with her and there was need for her to come here and I needed the money and I needed to pay expenses for immigration and phone calls to see how the status of her visa was. I guess I over-expend. Having had the money, had my access, I completely disregarded for - I guess I was selfish in a way. I did not look into it thinking that it was a very serious offence. I - sometimes people do make mistakes in life and such big mistakes like the one I made and should have known that the consequences were so great I've got to notify the social security straight away. After my marriage break-up and all that, I want to live a normal life. I've got a good job and I don't believe that's what everybody strives for. I don't know, it's up to your Honour to decide whether I should stay outside of gaol or in." 7 It appears that by arrangement with the Agency that the appellant commenced repayment on 1 May 1997, shortly after his initial interview, by fortnightly deductions to the Commonwealth from his salary and that he had, to the date of his conviction, paid $5,139.53. Her Honour ordered reparation in the sum of $18,752.13, when she sentenced the appellant, pursuant to s 21B of the Crimes Act 1912. 8 Both in terms of his admission of the offence and his plea of guilty as well as other evidence from the Probation and Parole Service there was more than adequate material justifying a conclusion that the appellant was remorseful and contrite. Her Honour did not, however, advert to this consideration, although she mentioned that his plea of guilty "is a matter to be taken into account". It may be that the element of contrition was not regarded by her Honour as significant because of the serious misapprehension of the circumstances of the case under which, it appeared, her Honour laboured. In giving judgment, her Honour said -