R v Higgins [2002] NSWCCA 407

Reported Decision : (2002) 133 A Crim R 385

New South Wales Court of Criminal Appeal

CITATION : R v Higgins [2002] NSWCCA 407 FILE NUMBER(S) : CCA 60860/01 HEARING DATE(S) : 02/10/2002 JUDGMENT DATE : 2 October 2002

PARTIES : Regina v Paul Andrew Higgins JUDGMENT OF : Wood CJ at CL at 1, 36, 38; Howie J at 2; Smart AJ at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0723 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : M. Cinque - Respondent G. Jauncey - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions - Respondent Peter Murphy, Solicitor - Applicant CATCHWORDS : Criminal Law and Procedure - Sentence - Applicannt suffering HIV/AIDS - Effect of ill health on sentence - Failure to apply Pearce v The Queen LEGISLATION CITED : Crimes Act 1914 (Cth) - ss 16A, 16G, 17A, 29B Justice Act 1902 - s 51A R v El Karhani (1990) 21 NSWLR 370 CASES CITED: Sweet (2001) 125 A Crim R 341 Pearce v The Queen (1998) 194 CLR 610 R v L (NSWCCA, 17 June 1996, unreported) DECISION : See paragraph 35.

IN THE COURT OF CRIMINAL APPEAL 60860/01

WOOD CJ at CL HOWIE J SMART AJ

WEDNESDAY 2 OCTOBER 2002 R v Paul Andrew HIGGINS Judgment 1 WOOD CJ at CL: I will ask Howie J to give the first judgment. 2 HOWIE J: The applicant pleaded guilty before a magistrate to three charges of imposing upon the Commonwealth contrary to s 29B of the Crimes Act 1914 (Cth). He was committed for sentence to the District Court under the provisions of s 51A of the Justices Act (1902) and adhered to his pleas in the District Court. The maximum penalty of imprisonment that can be imposed for each offence is 2 years. 3 On 7 December 2001 the applicant was sentenced by his Honour Judge Freeman in respect of each charge to imprisonment for 18 months to date from the date of sentence and to expire on 6 June 2003. His Honour ordered that the applicant be released after serving 6 months upon the applicant entering into a recognizance to be of good behaviour for 12 months. His Honour also made a reparation order in the sum of $52,599.26. The applicant seeks leave to appeal against the severity of that sentence. 4 Each of the offences concerned the applicant obtaining benefits to which he was not entitled from what was then the Department of Social Security. They were committed over a period from 29 March 1993 to 9 July 1998 and involved the applicant using an assumed name as well as his own. From 3 November 1983 for a number of periods of time the applicant was in receipt of benefits of various types under his own name. However, from 16 March 1993 to 20 December of that year he was also in receipt of a Job Search Allowance under the name of Paul Turner. From 21 December 1993 until 9 February 1998 he was in receipt of a Newstart Allowance also in the name of Paul Turner. 5 The benefits were paid to the applicant as a result of numerous false applications made by him and accompanied by supporting documentation proving this false identity. Included in this material was a statement in which he said he was living with Paul Higgins and paying him for board and lodgings. Each fortnight between March 1993 and February 1994 application forms for the payment of an allowance were sent to the applicant in the name of Paul Turner and he completed and returned them. The applicant on occasions supplied medical certificates under this name to prove that he was unfit for work. 6 On 23 February 1998 the applicant failed to lodge a fortnightly application form in the name of Paul Turner and no more claims or payments were made under that name from that date. However, this failure was coincidental with the fact that an ongoing investigation of the applicant's dual claims was about to come to fruition. 7 As well as making fraudulent claims under the name of Paul Turner the applicant was receiving rent assistance in his own name from 2 February 1995 even though he was not entitled to that benefit because from that date he was living in a property owned by the Department of Housing. The applicant had failed to inform the relevant agency that he had moved into that accommodation, as he was obliged to do. This activity was detected and in March 1999 a debt was raised against the applicant to recover the rent assistance payments wrongfully received by the applicant. 8 As a result of his fraudulent activity the applicant obtained three different types of benefits, each one giving rise to a separate criminal charge. The amounts obtained were as follows: Jobsearch Allowance - $5,505.32; Newstart Allowance - $40,749.44; Rent Assistance - $6,525.40. As at 19 November 2001 $1,180.90 had been recovered by withholding benefits from the applicant. 9 In respect of the criminality reflected in the offences committed by the applicant, the learned sentencing judge said: These impositions went on in those two separate guises over a long period, five years, and the sum involved is a not inconsiderable one. The crimes are ones which have been roundly condemned at appellate level on a number of occasions, touching as they do the whole structure of the revenue and the support network which is provided by the Government to those in need, and raising the risk that genuine claimants will be subjected to much greater difficulty in accessing benefits, and the burden borne by the ordinary taxpayer will be artificially inflated by depredations such as those in which this prisoner engaged.