Recognisance for Obtaining Financial Advantage By Deception From the Commonwealth
This is a case of recognisance for obtaining financial advantage by deception from the Commonwealth with exceptional circumstances.
Our client pleaded guilty to Obtaining a Financial Advantage From the Commonwealth for a total of $230,000. The charges related to a Centrelink deception where our client had fraudulently collected parenting payments over a period of nine years. The deception was discovered when our client was imprisoned for an unrelated drug trafficking offence and his payments ceased.
The client obtained the payments on the basis that he had full time care of his biological daughter. The truth, however, was that his daughter lived with other family members from the time of her birth and our client was not responsible for her day-to-day care. At the time of the plea, our client had paid back some of the funds by way of automatic deductions from his Centrelink payments, but the sum of $219,000 remained outstanding. For a deception point of this value, immediate imprisonment is the most likely outcome. It is very rare for a case with the given circumstances to receive a sentence that allows an accused to remain in the community.
We acted on behalf of the accused at the Melbourne County Court.
For this particular case, we relied on the doctrine of family hardship to found a submission for a community-based sentence. That is, we argued and established in Court that imprisoning our client would result in hardship to his family, particularly to his other three children that he cares for on a full-time basis. Hardship to family members by imprisonment will not usually be taken into account in mitigation of penalty. This means that a recognisance for obtaining financial advantage by deception from the Commonwealth, as an alternative to imprisonment, will not typically be imposed. However, hardship to family members will be taken into account where the court is satisfied that exceptional circumstances exist.
Exceptional circumstances is notoriously difficult to establish. The relevant case law sets the bar very high which can generally only be met where the family member or members are especially vulnerable and dependent on the care of the accused. Imprisonment of an accused will nearly always cause a degree of hardship to loved ones and so the exceptional circumstances test is such that the hardship must go beyond the hardship that often befalls the family of someone in custody.
In this case, we relied specifically on the fact that our client is the primary carer of his three children and there is no one else who can take on the parenting role. The mother of the children labours under a long term drug addiction and is not able to care for them. The children are all primary school aged and one suffers with significant disabilities requiring constant and highly involved care and professional intervention.
We submitted lengthy psychological reports and references to support our argument and called evidence from the family psychologist. This evidence proved key in persuading the court to consider a non-custodial disposition. We were able to point to the positive gains the children had made while in the full time care of our client. We were also particularly able to highlight the harm that may come to them should they be removed from his care upon his imprisonment.
We provided our materials to the prosecution in advance of the plea hearing and they agreed with our submission that family hardship existed. This was of considerable assistance and the court was persuaded that if our client were to be imprisoned, it would result in family hardship. Ultimately the court decided that a community-based sentence was appropriate. He was given a recognisance for obtaining financial advantage by deception from the Commonwealth. This is an excellent result both for him and his family considering the features of this case.
Our client was sentenced under the Commonwealth regime to a term of imprisonment of two years and six months but was released immediately upon being given a recognisance of $5000 to remain of good behaviour for 3 years. This means that our client was not required to serve any time in prison and will not be required to pay the $5000 unless he breaches the order by committing further offences. Practically speaking, this sentence operates in the same way as a suspended sentence.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 13/02/2017