R v JEFFREY [2011] NSWDC 138

District Court New South Wales

Medium Neutral Citation: R v JEFFREY [2011] NSWDC 138 Hearing dates: 7 April 2011 Decision date: 07 April 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For each of four matters sentenced to a fixed term of imprisonment of 18 months. Catchwords: CRIMINAL LAW - Sentence - Defrauding the Commonwealth - Dishonestly obtain benefit by deception - Lengthy period of offending Category: Sentence Parties: The Crown Brian Jeffrey Representation: Mr S Molloy - The offender Director of Public Prosecutions - Cth Legal Aid Commission File Number(s): 2010/129566 2010/130079

SENTENCE 1HIS HONOUR: Brian Jeffrey appears for sentence today after a lengthy period of offending. His correct name is Brian Jeffrey but when he was a much younger man he created a false identity, Brian Wilson, using his mother's maiden name. This was at a time when he was asked by a prospective employer what name he wanted to work under and for reasons he could not explain Mr Jeffrey decided that he would work under a false name. He said in Court that the best he could do to explain that decision was that he was a "goose head". That decision is of importance because of what Mr Jeffrey later did with his false identity. In short, he began to use that identity to collect pensions to which he was not entitled. Ultimately what he ended up doing was receiving pensions in both his correct name and his false name. Whilst he was entitled to the pensions in his correct name, he was not entitled to the pensions in his false name. Although it was one continuing offence, it has led to four offences due to a change in the legislation regarding the offence and a change in the nature of the pension that he received. 2The offender first lodged claims for disability support pension in the name Brian Wilson as far back ago as 1991. He supported his claim for that pension by various documents, including documents showing a bank account in that name, tax file number, tax assessments and a certificate from his doctor which referred to injuries which does appear Mr Jeffrey genuinely suffered from. 3He was very careful to ensure that it would be difficult to match his two identities, by having his pension paid into a different bank account and having correspondence going to a different address from that from where he truly lived. His offending extended all the way through to September 2009 when the authorities finally caught up with him. Over that time he has obtained more than $175,000 to which he was not entitled. 4His first two offences are of defrauding the Commonwealth. They relate to a figure of $65,380 and his next two offences are of dishonestly obtaining a benefit involving almost $110,000. At first he received the disability support pension, as I have mentioned, but then when he became old enough the pension was converted to an age pension. That explains why there are four offences rather than one. 5Quite clearly this is a very serious offence. The amount of money involved, the length of time over which the offending occurred, the fact that the offending was committed until it was detected by the authorities, and the fact that the offender was careful to do all he could to avoid detection through calculated and deliberate methods, all demonstrate the seriousness of this offence. Another way of looking at the seriousness of the offences is to consider the maximum penalty that parliament has provided; ten years imprisonment for each of the four offences. 6It is, as Mr Molloy who appeared for the offender today concedes, a matter where the only real issue is how long the offender should serve in custody. Mr Molloy does not suggest that it would be in any way possible for the offender to receive a sentence of other than full time custody. That appears to be the offender's view himself, telling the Probation and Parole Officer who interviewed him for the preparation of a presentence report, that he would just have to accept his punishment that was coming to him. 7The offender is almost seventy years of age. He left school at the age of eleven and although he can read and write quite well, he has had a number of unskilled occupations over the years, spending time in the bush shooting foxes for example. At one stage he was left with the sole care of his daughter after his then wife abandoned them and he raised that daughter successfully. He has been married on two occasions but is now living a relatively isolated life as a single man. He is not a person who spent the money that he obtained on luxuries such as champagne and caviar. The money was instead spent on alcohol and gambling. This is not a case where the offender has led the high life by any means. For those reasons I am sure he looks back on what he has done and quite understands the futility of his lengthy offending. 8He is, I am satisfied, remorseful, not only for the reason I have just identified but because he recognises how wrong his conduct has been. He is repaying the amount that he has unjustly obtained at the sum of $150 per fortnight. I am sure Mr Jeffrey will not mind if I point out that it is unlikely that he will ever repay the full amount, it would take him forty-three years from today to do so. But he has paid already in the order of $5,000. Perhaps more importantly his decision to pay the debt off at that rate, whereas he could easily have paid it off at a much lower amount of $50 per fortnight, does demonstrate his remorse. He wants to make right what he has done as much as he is able to. 9The offender has a criminal history. Most recently he was dealt with for a number of firearms offences, but as is the way with firearms offences, possession of a single firearm with ammunition to go with it, can lead to multiple offending. So it proved to be in this case. The offender was dealt with in 2009 for a number of offences arising out of his possession of an old 303 that he had used in the bush when he was a much younger man. 10The offender's pleas of guilty came at an early stage and so in order to recognise his willingness to assist the facilitation of the criminal justice system, I will discount the sentence I would otherwise impose by twenty-five per cent. 11The offender suffers from a number of medical conditions, most of which are age related. A medical report from Dr Malouf was relied on by the offender which sets out in some detail the various conditions from which Mr Jeffrey suffers. It is not suggested that those matters are such that he should not receive a sentence of fulltime custody, but of course it is suggested that because of these conditions, both physical and mental, he will do his time in custody harder than would otherwise be the case. I will take those matters into account in assessing the appropriate sentence to impose upon the offender. 12The Crown helpfully provided me with some comparative cases involving offending where people have used multiple identities to obtain pensions and other allowances to which they were not entitled. They have been of assistance to me in assessing the appropriate sentence to impose in this case. 13Mr Molloy submits, and I agree, that this is not a case where there should be any accumulation of sentence. As I have tried to explain it is one course of criminal conduct and the fact that there are four separate offences involved is more an accident of legislative change, and the nature of the pension changing as the offender aged. 14I raised with Mr Molloy and Madam Crown whether it was really a case that a fixed term of imprisonment should be imposed. I am satisfied that the offender is most unlikely to re-offend in the future. In fact I could almost guarantee it, given his age and the demonstration of remorse that I have referred to earlier. In those circumstances there is no utility in imposing a period on parole. All it would do, as far as I can see, is to waste the resources of the Corrective Services Commissioner supervising a person who does not need supervision. Even if he continues to gamble, the prospects of the offender committing further offences to do so are, as I have tried to explain, nil. The only response the Crown had to my floating the idea of a fixed term was to helpfully alert me to the legislative requirements regarding that matter. 15It is never an easy thing to sentence someone to gaol and this is particularly the case where the offender is almost seventy. But, as is agreed, it is necessary to do so in the present case. These offences are unfortunately prevalent. There is a need to impose sentences on offenders such as Mr Jeffrey which may deter others who might be tempted to do things similar to that which he has done. Nevertheless the fixed term that I am about to announce is I consider an appropriate one given the offence and the offender that I have before me. 16The offender is sentenced to imprisonment on each of the four matters before me for a fixed term of eighteen months to date from today. The reasons for imposing a fixed term are that there is no utility in a period of eligibility for parole. 17Now Mr Jeffrey I need to explain the sentence to you. It is fairly simple, you will be going into custody today and you will be released in eighteen months. Once you are released you will not be on parole. I consider that your punishment of eighteen months is sufficient and there is no benefit in you being supervised by the Probation and Parole Service. So a very simple sentence, in today and out in eighteen months time.