REGINA v KILLEN [2005] NSWCCA 17

Reported Decision : 152 A Crim R 1

New South Wales Court of Criminal Appeal

CITATION: REGINA v KILLEN [2005] NSWCCA 17

HEARING DATE(S): 30 November 2004

JUDGMENT DATE: 9 February 2005

JUDGMENT OF: James J at 1; Hidden J at 2; Bell J at 23

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - Defrauding the Commonwealth - 21 months imprisonment - Wholly suspended - Defrauding of social security system over a period of years - Unusual subjective case - Alcoholism arising from sexual abuse as a teenager and related health problems - Whether exceptional circumstances justifying disposition other than full time custodial sentence to be served

LEGISLATION CITED: Crimes Act 1914 (C'th)

R v Howe [2000] NSWCCA 405 R v Purdon (NSWCCA 27 March 1997 unrep) CASES CITED: R v Aller [2004] NSWCCA 378 R v Henry (1999) 46 NSWLR 346

Regina (applicant) PARTIES: Joanne Maree Killen (respondent)

FILE NUMBER(S): CCA 2004/2323

M. Allnutt (Crown) COUNSEL: A. Webb (respondent)

Commonwealth DPP (applicant) SOLICITORS: Legal Aid Commission (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0055

LOWER COURT JUDICIAL OFFICER: Graham DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2323

JAMES J HIDDEN J BELL J

9 February 2005 REGINA v Joanne Maree KILLEN Judgment 1 JAMES J: I have read Hidden J's judgment in draft and have concluded that, for the reasons given by his Honour, the Crown appeal against sentence should be dismissed. I have reached that conclusion, only after considerable hesitation. The conclusion depends very much on the peculiar combination of circumstances in this case and the decision of this Court should not be regarded as lending any support to a general proposition that a person who received social security benefits to which he or she was not entitled can avoid an immediately effective custodial sentence because of a belief that the benefits were needed in order to pay for alcohol or drugs to which the person was addicted. 2 HIDDEN J: This is an appeal by the Commonwealth Director of Public Prosecutions against a sentence passed upon the respondent, Joanne Maree Killen, in the District Court after she pleaded guilty to a charge of defrauding the Commonwealth, an offence under s29D of the Crimes Act 1914 (C'th) which carries a maximum sentence of ten years imprisonment. She was sentenced to imprisonment for twenty-one months from the date on which sentence was passed, 19 August 2004, but the sentencing judge directed, pursuant to s21(1)(b) of the Act, that she be released immediately upon recognisance. The recognisance was conditioned that she be of good behaviour for the period of the sentence and accept the supervision of the Probation and Parole Service. Pursuant to s21B of the Act, his Honour ordered her to pay reparation to the Commonwealth in the sum of $95,852.09.