Newstart fraud sentence upheld on appeal
Name: Dowlat Soliman
Date of Judgment: 8 February 2021
Court: Court of Appeal – Victoria
Partner Agency: Services Australia
Summary of charges:
On 30 November 2020, Dowlat Soliman entered a plea of guilty to one charge of obtaining a financial advantage by deception contrary to section 134.2(1) of the Criminal Code (Cth). She was sentenced to 20 months’ imprisonment to be released after serving five months and entering into a Recognisance Release Order (RRO) in an amount of $1000. On 24 December 2020, Ms Soliman appealed against her sentence on the ground that the sentence was manifestly excessive. The matter was heard on 1 February 2021. The Court of Appeal refused the application for leave to appeal on 8 February 2021.
Between 13 March 2013 and 27 November 2017, the offender dishonestly obtained a financial advantage in the amount of $65,298.58 from Services Australia in the form of payments of Newstart Allowance, to which she was not entitled. During the period of the offending, the offender reported her income on 124 occasions, actively making 51 false nil income declarations and 72 false under-declarations. Over a period of around four and a half years she earned gross income of $236,563.05 but declared only $22,126.76 to Services Australia, being less than 10 per cent of her earnings. The offending was not voluntarily disclosed but detected following an anonymous tip off.
On 19 August 2016, she was contacted by Services Australia regarding irregularities in her declarations. Ms Soliman advised Services Australia that her job provider had brought to her attention that she had not been declaring all of her earnings to Services Australia and provided her with an overview on how to correctly report her earnings. She further advised that she now understood how to correctly declare her earnings. Services Australia encouraged her to contact them should she require assistance in the future. Subsequently, Ms Soliman continued to offend.
The County Court plea hearing was conducted online via the Webex platform. The Informant was able to join the Webex meeting and assist with queries from Counsel in real time. This had a valuable impact on the smooth running of proceedings.
On application for leave to appeal, the sentencing judge’s conclusion that a term of imprisonment was warranted and that a period of custody was required, was not challenged by counsel for the applicant. The submission for the applicant concentrated almost entirely on the period of actual custody; specifically, it was submitted that no more than three months’ imprisonment should be required before the applicant was to be eligible for release on recognisance. The Court of Appeal found the submission incurably flawed, stating that the decision as to how much time should be served is quintessentially discretionary for the sentencing judge.
Counsel for the applicant drew the Court’s attention to the decision of the Queensland Court of Appeal in R v Newton (2010) 199 A Crim R 288, specifically to the judgment of Chesterman JA in dissent. At paragraph three of the judgment His Honour stated “An application for leave to appeal against sentence cannot succeed unless the applicant demonstrates that the sentence actually imposed was not appropriate at all: that it was manifestly excessive because it was beyond the permissible range of discretionary judgment.”
His Honour’s description above of the ground of manifest excess was noted as entirely consistent with well-established principles. The Court of Appeal found that in the present case it was simply not tenable to argue that the requirement of the applicant to serve five months of a 20 month sentence is ‘beyond the permissible range of discretionary judgment’.
The Court of Appeal agreed with the CDPP that, had considerable weight not been given to the factors raised in mitigation of sentence, a longer period of time to serve would have been required, given the objective seriousness of the offending.
Following an application to expedite the hearing, the matter was listed on 1 February 2021. Judgment was handed down on 8 February 2021 by Maxwell P and Beach JA, dismissing the application for leave to appeal. Given the seriousness of the offending and the applicant’s persistence in her deceptions after being questioned about the income declarations, the immediate custodial sentence of five months was well within the range of sentences reasonably open to the judge.