05 May 2014

Entitlement fraud

In R v Ogden [2014] QCA 89 the Court has considered an appeal against what was claimed to be a manifestly excessive sentence regarding fraud.

Ogden had pleaded guilty to two counts of defrauding the Commonwealth and three counts of obtaining a financial advantage by deception (i.e. claimed benefits in others' names and his own name over 15 years). Ogden (who was between 59 and 74 at the time of the offending and 76 years old when sentenced) was sentenced to five years imprisonment with a non-parole period of 20 months.

Fraser, Gotterson and Morrison JJA considered whether the sentencing judge properly took into account the applicant's full restitution and gave due weight to the applicant's health problems. Ogden contended that the appropriate sentence is three to four years imprisonment with a recognizance release fixed upon a date no more than six months after the date of sentence. The QCA noted that
His offending spanned 15 years between May 1997 and May 2012. During that period the applicant claimed benefits in the names of two other persons as well as in his own name. To support his claims in the names of those two other persons he produced documents, including birth certificates, which were referable to those persons. The benefits paid to the applicant upon the claims in those two other names were subsequently transferred, on applications made by the applicant, to age pensions. To support those applications the applicant again provided identity documents referable to those other persons. The total amount taken by the applicant was $406,737.35. 
Before the applicant commenced his frauds in May 1997 he owned many separate pieces of land, some of which were improved by a house and all except one of which were unencumbered by any mortgage. He purchased additional real estate after he embarked upon the frauds. A schedule shows that during the whole period of offending the applicant owned a total of 14 different properties. One additional property was purchased by his wife and another additional property was purchased by his son with a mortgage granted to the applicant. 
At the time of sentence the applicant, or family members to whom he had transferred properties, remained the owner of 11 properties and he remained the mortgagee of the property bought by his son. By then the applicant had sold the one property which was subject to a mortgage. He sold that property in May 2004 for $105,000, as against the purchase price in September 1983 of $25,000. In September 2007 and March 2008 the applicant sold another property; there were two sale dates because what the schedule treated as one property, property 13, comprised different lots. The total price for those lots was $172,000, as against valuations in May 1997 of $4,500 and January 2008 of $47,000. The other property which the applicant sold was improved by “small free standing home/shop”. He had purchased that property in May 1977. Its value in May 1997 was $65,000 and its value in January 2012 was $225,000. It was not encumbered. The applicant used the sale price of $345,000 achieved at settlement in September 2012 as the main source of funds to repay the Commonwealth the money defrauded. 
The applicant was married with one adult child and had no criminal history. At the sentence hearing he tendered a medical report by a general practitioner which described many ailments from which the applicant suffered.