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[1999] VSCA 224
Court of Appeal (Vic)
1999-12-10
TADGELL, CALLAWAY and BATT, JJ.A.
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Defrauding Commonwealth - By employee of Commonwealth - Where particular offence serious, ordinarily sentence to be custodial and at least part to be actually served - Crimes Act 1914 (Cth.), s.29D.
"At the time of the commission of these offences you were in a desperate financial situation, isolated emotionally since the marriage breakdown, seeking to preserve order in the lives of yourself and particularly the boys. In those circumstances you then started to commit these offences. Your main concern was for the boys."
It was debated before us whether the second sentence in that passage affected, or case light on, the meaning of the others. The first sentence reflects the somewhat imprecise submission of the respondent's then counsel to his Honour, but, in the absence of any challenge below to that submission, I am prepared to treat the first sentence as a finding of fact that is not limited to the initial offending.
"The facts I have outlined show these crimes involved a high degree of fraud on the Commonwealth, carried out systematically over a substantial period, involving a considerable sum. In their perpetration you abused your situation of trust and responsibility. The crimes are to be regarded as serious. You were a leader of your four person unit and it is to be borne in mind that this type of crime is difficult to detect and prosecute. It is also unfortunately prevalent. Ordinarily such crimes will merit immediate custodial sentences to deter others and show disapproval of such conduct".
"Your immediate incarceration would put the futures of your two boys at risk at a vulnerable stage of their lives. You are a person with potential to still serve the community well in the workforce and worth every effort for your rehabilitation... I think that the interests of the prosecution and the community in the matter of deterrence, punishment and the need to show disapproval of your conduct, all factors of substantial importance, are sufficiently served without the imposition of an immediate incarceration, but at the same time with a substantial head sentence."
"(a) The nature, circumstances and gravity of the offences committed by the Respondent, (b) the culpability of the Respondent, (c) the fact that the offences involved a breach of trust, (d) the amount fraudulently obtained, (e) the number of individual fraudulent transactions, (f) the period over which the offences were committed, (g) the fact that no explanation was provided as to the manner in which the amount fraudulently obtained was used, (h) the fact that no part of the amount fraudulently obtained had been repaid, (i) the need to pass a sentence that would be calculated to deter other persons disposed to commit similar offences from committing such offences."
The fourth is that his Honour erred in giving undue weight to:
"(a) the Respondent's personal circumstances, (b) the effect that the incarceration of the Respondent would have upon her two children who are aged 17 and 22 respectively, (c) the assertion made by counsel on behalf of the Respondent that the Respondent was in desperate financial circumstances at the time the offences were committed, given the facts before him as to the Respondent's employment income and the sums obtained from her fraudulent activity."
"Those authorities, I think it true to say, generally speaking, show that a serious breach of trust by a servant of the Crown who steals a substantial sum of money over a not inconsiderable period of time calls for a sentence of such deterrent effect that it must involve some loss of the culprit's liberty. Imprisonment for a not insignificant period must be imposed notwithstanding that factors might exist that invite the exercise of clemency."
His Honour then quoted a passage from the decision of the Court of Criminal Appeal in R. v. Moffat (unreported, 15 December 1992) to like effect. It is true that in DPP (Cth.) v. Rogers (unreported, Court of Appeal, 20 April 1998) this Court on a Director's appeal declined to interfere with an order for immediate release upon recognisance in the case of a Commonwealth employee who altered computer data so as to divert benefits. But there were some usual aspects of that case, which was not strictly a social security fraud but a computer-related offence, and there were certain mitigatory factors. The amount obtained was considerably lower than that here, being a little over $16,000, and it had been repaid.
2. Recognisance release order made on 29 July 1999 in respect of the respondent set aside.
3. Order that a warrant issue for the apprehension and imprisonment of the respondent to serve the sentence of imprisonment imposed on her in the County Court on 29 July 1999.
4. Order that the respondent be released on her own recognisance of $500 to be of good behaviour for two years from the day of her release after having served 180 days of the sentence of imprisonment imposed on her on 29 July 1999.
(Short adjournment).
(Upon resuming, Batt, J.A. sitting alone):
Director of Public Prosecutions (Cth)
Reynolds [1999] VSCA 224