Dagher v R

Court of Criminal Appeal (NSW)|2017-10-11|Before: Leeming JA, Johnson J, Adamson J, Gleeson CJ, James JJ, Cole JA, Newman J

Solicitors: Hanna Legal (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2016/52676 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 May 2017 Before: Delaney ADCJ File Number(s): 2016/52676

Judgment

LEEMING JA: I agree with Adamson J.
JOHNSON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence imposed on her by Delaney ADCJ on 22 May 2017 for one count of obtaining a financial advantage by deception contrary to s 134.2 of the Criminal Code Act 1995 (Cth) (the Code). The sentence of imprisonment was for a term of 2 years from 22 May 2017 with a direction that the applicant be released after 12 months pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (the Act) upon entering into a self-recognisance in the sum of $500 to be of good behaviour for 12 months. She is due to be released on 21 May 2018. All references to legislation in these reasons are references to the Crimes Act unless otherwise stated.
The applicant relied on the following three grounds of appeal: 1. His Honour erred in concluding that the applicant had shown no remorse or contrition, because she had permitted the offence to continue for a number of years, even notwithstanding evidence of post-offence conduct, which demonstrated such remorse and contrition. 2. His Honour failed to reduce, in accordance with s 16AC, the sentence imposed upon the applicant, to reflect the value of her undertaking to cooperate with law enforcement agencies, in proceedings relating to other offences. 3. His Honour erred in failing to take into account the effects which a sentence of imprisonment would have upon the applicant's family.

Ground 2

Section 16AC provides that if a court imposing a sentence for a federal offence reduces the severity of the sentence or the non-parole order because the offender has undertaken to co-operate with law enforcement authorities in proceedings relating to the offence, the court must state that the sentence is being reduced for that reason and specify the sentence that would have been imposed but for that reduction: s 16AC(1) and (2). If the person does not co-operate in accordance with the undertaking the Director of Public Prosecutions may appeal against the sentence: s 16AC(3). The court hearing the appeal can increase the sentence if it is satisfied that the offender has, without reasonable excuse, failed to co-operate, entirely or in part: s 16AC(4).
The sentencing judge failed to comply with the requirement of s 16AC and, in particular, did not identify what sentence would have been imposed but for the undertaking to co-operate with investigating authorities in the future. This is an error of law which requires correction.
I note that his Honour at various stages of the sentence hearing sought assistance from the Crown as to the provisions relevant to sentences for federal offences, it being apparent that his Honour was more accustomed to sentencing for state offences under the Crimes (Sentencing Procedure) Act 1999 (NSW). After his Honour had pronounced sentence he asked the parties if there was an issue with what had been pronounced. On no occasion did the Crown, or the applicant's representative, remind the sentencing judge of the requirements of s 16AC, though they were plainly germane to the sentence to be imposed on the applicant, having regard to her undertaking. Legal representatives, and the Crown in particular, have an obligation to assist courts to perform their functions in accordance with the law. It is part of a prosecutor's duty to inform the Court of any legislation bearing on the appropriate sentence and to assist the Court to avoid appealable error on the issue of sentence: Rule 95(b) and (c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015; and Rules 29.12.2 and 29.12.3 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. The second ground of appeal is the result of the failure of the Crown to provide adequate assistance to the sentencing judge.
It was accepted by the parties that a re-sentencing exercise was required. The Crown initially proposed that this Court ought remit the matter to the sentencing judge to specify the discount for future assistance pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) in accordance with the approach taken by this Court in R v Whitney (Court of Criminal Appeal (NSW) Gleeson CJ, Cole JA and Newman J, 6 November 1997, unrep). In R v Whitney the Crown proposed that course, which was not opposed by the appellant. I consider that, as error is accepted, this Court ought undertake the re-sentencing exercise itself, rather than remit it to the sentencing judge.
This Court must re-sentence the applicant as at the date of re-sentence and must exercise the discretion afresh. Apart from a joint note provided by the parties (to which reference will be made below), no material has been provided to this Court beyond that which was before the sentencing judge. Accordingly, the material for sentencing which was before Delaney ADCJ remains, with the joint note, the basis on which the applicant will be re-sentenced. The applicant did not give evidence at the sentence hearing before Delaney ADCJ. The only oral evidence was given by the applicant's husband, who was not cross-examined.

Relevant legislative provisions

The applicant is a federal offender. The sentence is to be determined in accordance with Part 1B of the Act. Section 16A(1) requires a Court sentencing a person for a federal offence to impose a sentence of a severity appropriate in all the circumstances of the offence. The Court is required to take into account the matters listed in s 16A(2) and any other relevant matters, insofar as they are relevant and known to the Court.
The maximum custodial penalty for the offence is 10 years' imprisonment.

The nature and circumstances of the offence (s 16A(2)(a))

Between about 24 May 2013 and 13 November 2015, the applicant claimed and obtained welfare payments from DHS Centrelink (Centrelink) including Carer Payment and Carer Allowance in respect of two of her children whom she knew were not unwell in circumstances where she either knew or believed that she was not entitled to them. She paid a fee of $8,000 to two co-offenders to obtain the assistance she needed to fill out the forms and obtain the required supporting documentation.
When Centrelink initiated a review of the payments in respect of the applicant's son and one daughter, she took those two children to appointments with different doctors to obtain the necessary documentation to fulfil the requirements of the review. The applicant signed and submitted the review form in respect of her daughter. The doctor who saw the applicant's son in the presence of the applicant requested only the child's name and date of birth. No examination of the child was conducted at that time. Thus she again took active steps to obtain documentation to perpetuate the false claims.
The applicant's conduct continued until Centrelink advised her in November 2015 that the payments would be stopped on the basis that the claims and supporting documents did not accurately reflect the children's care requirements or that they did not qualify as dependants.
As a result of her dishonesty the applicant received, during the period 24 May 2013 and 13 November 2015, a total of $66,447.53 from the Commonwealth to which she was not entitled. An amount of $49,764.43 related to Carer Allowance and the balance, $16,683.10 related to Carer Payment. The amount of money involved and the length of time over which the fraudulent offending occurred are significant relevant considerations when determining the objective seriousness of the offending: R v Hawkins (1989) 45 A Crim R 430 at 435 (Lee J). The use to which the dishonestly appropriated funds were put is a relevant consideration. It was not suggested that the offending in the present case occurred as a result of any real or perceived need.

Contrition (s 16A(2)(f)); prospect of rehabilitation (s 16A(2)(n))

It was submitted on the applicant's behalf that she has shown contrition by pleading guilty to the offence. The applicant pleaded guilty in the Local Court on 16 August 2016, which was the sixth occasion on which the matter had been listed in that Court. She adhered to her plea before Delaney ADCJ on 22 May 2017. I regard her plea in these circumstances as a pragmatic response in the face of a strong Crown case, rather than a demonstration of remorse.
It was also submitted that the applicant had shown contrition by expressing shame and regret for her actions. The offending did not cease due to any action taken on the part of the applicant. If the offending had not been detected by Centrelink, there is no reason to suppose that it would not have continued. Thus, any remorse could only date from the time the applicant's criminal conduct was detected and the payments stopped. Although the applicant did express regret for her actions, she did not give sworn evidence at the sentence hearing to enable those expressions to be tested.
Further, when she was interviewed for the purpose of a Pre-Sentence Report dated 1 May 2017, the author recorded the following: "Attitude to offending [The applicant] disputed elements of the Facts. She maintained that she was not aware of the illegality of her actions. She expressed shame and regret for her actions, although deflected responsibility for the offence to other parties She voiced her commitment to paying restitution. . . . Assessment . . . [s]he claimed to have been unaware that her actions were illegal, instead apportioning blame to the third parties named in the Facts."
It is difficult to reconcile the applicant's expressions of shame and regret to the author of the Pre-Sentence Report with her statements that she did not know that her actions were illegal. I do not accept that the applicant did not know her actions were illegal at the time. The offending involved the applicant making claims for a Carer Payment and a Carer Allowance in respect of two of her children whom she knew were not unwell.
It was also submitted that the applicant had shown contrition by making arrangements to repay the Centrelink debt. The evidence tendered on behalf of the applicant showed that Centrelink wrote to the applicant on 24 January 2017 confirming the account balance of $83,545.39 and the repayment arrangement of a lump sum payment of $20,000 by 31 January 2017 and monthly repayments of $500 per month with the first payment to be made on 28 February 2017. Had the applicant not made an acceptable offer to repay the debt and repayments had not been made in accordance with the agreement interest would have been compounded daily. The material also sets out other measures available to Centrelink to recover the monies owed, which were a debt due to the Commonwealth. By entering into an arrangement with Centrelink to repay the monies, the applicant was acting in her own financial interest. In these circumstances I do not regard the arrangement to repay the debt or the repayments made to date as demonstrating contrition.
In these circumstances I do not consider the evidence to be sufficient to indicate her prospects of rehabilitation.

Plea of guilty (s 16A(2)(g))

The timing and circumstances of the plea of guilty are set out above.

Degree of co-operation (s 16A(2)(h))

The applicant provided a letter of assistance dated 5 January 2017 which relevantly said: "Assistance provided by the offender to date The Defendant has agreed to sign an undertaking under s 16AC of the Crimes Act 1914 (Cth) to be a witness and give evidence in proceedings against [persons named in the letter of assistance] which will be handed up with this letter. . . . Grading The Defendant has been co-operative and has indicated a preparedness to assist the prosecution by providing an induced statement and giving evidence against co-accused. When evaluating her level of assistance, consideration has been given to what assistance the Defendant was able to and did in fact provide and what future assistance she has committed to. The AFP assesses the Defendant's assistance as being of medium value."
The letter also confirmed that the information provided by the applicant largely corroborated evidence which the Australian Federal Police (AFP) had already obtained. The applicant volunteered information without evidence being put to her. The information which she provided was different in some respects from the information she had given in her recorded interview. Both the applicant and the AFP were of the view that the applicant was not putting herself or other persons at risk by providing assistance to authorities.
One of the alleged co-offenders (A) died on 17 June 2015. Accordingly, the assessment of the value of the applicant's assistance contained in the letter of assistance set out above took into account that there was only one surviving potential co-offender in respect of whose prosecution the applicant could provide assistance, being alleged co-offender B. On 5 May 2017 the applicant signed an undertaking to co-operate with law enforcement authorities pursuant to s 16AC.
The parties have provided to this Court an agreed statement of facts dated 18 October 2017 as follows: "1. The Letter of Assistance provided by the Australian Federal Police dated 5 January 2017, which assessed the assistance to be provided by the Applicant to the authorities as being of medium value, took into account the death of one of the Applicant's two co-offenders (Co-offender A) on 17 June 2015. 2. The section 16AC Crimes Act 1914 (Cth) undertaking to provide future assistance dated 5 May 2017 relates to a single co-offender of the Applicant (Co-offender B). 3. Charges have now been laid against Co-offender B. Co-offender B has not yet entered a plea. 4. The current grading of the Applicant's undertaking to provide future assistance in the prosecution of Co-offender B is medium value."
The question of the separate evaluation of future assistance will be addressed below.

Specific deterrence (s 16A(2)(j))

There is also a need for a significant specific deterrent aspect to the sentence, as demonstrated by the extensive period of offending and the amount of money appropriated in this case.

General deterrence (s 16A(2)(ja)) and punishment (s 16A(2)(k))

General deterrence and punishment are of primary importance in sentencing for offences of this nature. In R v Annecchini (Court of Criminal Appeal (NSW), Gleeson CJ, Allen and James JJ, 24 April 1996, unrep), Gleeson CJ said: "It is generally the fact that considerations of general deterrence are of importance in dealing with social security fraud. One of the reasons for that is that conduct such as that engaged in by the present appellant is difficult to detect, indeed it is probably detected in a relatively small proportion of cases, and when it is detected it is appropriate that other people in the community who might be tempted to engage in such conduct should understand the penal consequences that attach to it. Indeed, questions of morale become involved if those in the community come to think that people who practise fraud of this kind upon the Commonwealth can get away with it or, if apprehended, will be dealt with leniently..."

The applicant's character, antecedents, age, means and physical and mental condition (s 16A(2)(m))

The applicant is 47 years old. She has no criminal history. She was born in Sierra Leone and migrated to Lebanon before arriving in Australia in May 1994. Her husband sponsored her immigration. The couple has six children, two of whom, by 5 May 2017, were married. The remaining four children, aged between 6 and 17 live with the couple at their home in Mt Pritchard in the Liverpool area. The applicant and her husband own their house subject to a mortgage which, as at May 2017 still had $227,000 outstanding. The monthly payments were around $1,600 per month. The applicant's husband worked as a self-employed courier. His approximate after-tax annual income was $44,000. All four children go to school. Before her incarceration, the applicant took them to school. Two of the children, both girls, who were aged 12 and 17 in May 2017, have medical conditions (asthma and epilepsy) which require medication, which was obtained by the applicant.
The applicant's husband gave evidence at the sentence hearing in May 2017 that if his wife were incarcerated he would have to stop work to look after the children and that he had no other means of repaying the mortgage. As no evidence or other information is before the court as to the family's current circumstances, I am not prepared to infer that what the applicant's husband predicted as the outcome of the imposition of a custodial sentence on his wife has come to pass.
The applicant has type-2 diabetes and hypertension which is treated with medication. She was also suffering from what her general practitioner described on 26 August 2016 as "situational stress" relating to the investigation by the AFP of the present offence.

The probable effect of the sentence on any of the person's family or dependants (s 16A(2)(p))

As there is no up-to-date evidence of the situation of the applicant's family at the time of sentencing it is not possible to determine this factor with any specificity. As the applicant was, for much of the week, the sole carer for her four children who lived at home, the youngest of whom is 8 years old, I assume that her absence is having a considerable emotional effect on the children, and particularly the youngest. However, the evidence does not disclose what their present care arrangements are.

Whether sentence of full-time custody required

Having considered these matters, and in particular the nature and gravity of the offence and the need for punishment and general deterrence, I am not satisfied that any sentence other than one which involves full time custody is appropriate in all the circumstances of the case: s 17A.

The effect of s 16AC in the present case

I have considered the current grading of the value of the applicant's undertaking to provide future assistance and the matters as to the provision of such assistance referred to above. But for the promise of future assistance I would have proposed a sentence of 2 years and 4 months imprisonment and directed that the applicant be released after 1 year and 2 months upon entering into a recognisance to be of good behaviour with self-surety of $500. However, in light of the promise of future assistance I propose a sentence of 2 years' imprisonment and a direction that the applicant be released after 1 year upon entering into a recognisance to be of good behaviour with self-surety of $500. As the applicant has been in custody since 22 May 2017, the sentence ought commence from that date.
For the reasons given above, I consider that no lesser sentence (whether in respect of total term or time to be served in custody) is warranted in law: s 6(3) of the Criminal Appeal Act.
I note that s 6(3) of the Criminal Appeal Act provides that, if the sentencing court is of opinion that no less severe sentence is warranted, the court is to dismiss the appeal. Section 6(3) of the Criminal Appeal Act applies to the applicant's application for leave to appeal against sentence by reason of s 68(1)(d) of the Judiciary Act 1903 (Cth): Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [10] (Allsop P); and [87] (Basten JA). However, s 6(3) does not displace the obligation imposed on a sentencing judge or court on re-sentence by s 16AC of the Crimes Act to specify, where a sentence has been reduced by reason of an offer of future assistance, what sentence would have been imposed but for the offer. Section 16AC, like s 16A, applies of its own force: see Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [18]. Any potential inconsistency between s 6(3) of the Criminal Appeal Act (as applied by s 68(1)(d) of the Judiciary Act) and s 16AC of the Crimes Act is resolved in favour of the latter. Where the miscarriage in sentencing discretion has arisen as a consequence of non-compliance with s16AC of the Crimes Act, this Court ought allow the appeal (even if the sentence imposed is, in numerical terms in all respects identical to that imposed by the sentencing judge) and, on re-sentence, ought specify what discount was applied by reason of the offer of future assistance.
Although, if the applicant provides the assistance which she has undertaken to give in the future, the resultant sentence will be the same as had the sentence imposed by Delaney ADCJ stood, it is necessary to set it aside in order to state the matters required to be stated by s 16AC and in order to sentence the applicant in accordance with law. It appears that the sentencing judge took into account past and future assistance in a rolled-up discount, but failed to comply with s 16AC. Accordingly, it was not possible to determine from the sentence imposed what it would have been (as required by s 16AC) but for the applicant's undertaking to give future assistance. This error caused the sentencing discretion to miscarry which required the applicant to be re-sentenced according to law.
As referred to above, the sentence imposed by this Court is, in effect, the same as the one imposed by Delaney ADCJ. Where a sentence is relatively short but there is a need for a component of full-time custody for the purposes of general deterrence and punishment, it is not surprising that the re-sentence, based on effectively the same evidence, will be the same or similar to the original sentence.

Proposed orders

In these circumstances I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. In lieu of the sentence imposed by Delaney ADCJ on 22 May 2017, impose a sentence of 2 years' imprisonment commencing on 22 May 2017. 4. Direct that the applicant be released after serving 1 year, on 21 May 2018 on recognisance to be of good behaviour for 1 year, upon her giving self-surety of $500. 5. Note, pursuant to s 16AC of the Crimes Act 2014 (Cth), that the sentence that would have been imposed but for the applicant's promise of future assistance, would have been a sentence of 2 years and 4 months' imprisonment with a direction that the applicant be released on 21 July 2018 on recognisance after serving 1 year and 2 months' imprisonment, upon her giving self-surety of $500 to be of good behaviour for 1 year and 2 months.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2017

Crimes Act 2014(Cth)

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