DPP (Cth) v Milne [2001] VSCA 93

DPP (Cth) v Milne [2001] VSCA 93 - VSCA 2001 case summary — Zoe

[23]

Before considering these submissions, it is desirable to refer briefly to the material which was before her Honour and which she was bound to consider in the exercise of her sentencing discretion. That material largely comprised submissions by counsel, made no doubt upon instructions, but supplemented - as I have said - by evidence from the respondent's elder sister. There were also medical and other reports which, to some extent, confirmed the submissions which were made by counsel. The material, as a whole, painted a depressing picture of the respondent's upbringing and background. It appears that she was raised in a somewhat dysfunctional family where the father was a heavy drinker, a strict disciplinarian and a poor provider. The mother was said to be self-centred and discontented with her lot in life, something for which she blamed her children. There were three children, the respondent, her elder sister and a younger girl. For reasons which do not appear entirely clear, the elder sister was the preferred daughter - at least to the extent of receiving a reasonable education which was denied to the respondent who, so it was said (although not wholly supported by evidence), was required to leave school early to join the workforce in somewhat menial employment. The mother and the father appear to have lived in strained circumstances until, when the respondent became pregnant with her child, the mother refused to have anything to do with her or her baby, which was for a time placed in the care of the State. As I understand the matters put on the plea, the respondent was left much to her own devices; her mother left home with her youngest child and the elder sister did likewise to pursue her own interests in life. The respondent, who reclaimed her child from the authorities after some 7 months, returned to live with her father but received little by way of practical, financial or emotional support. It was put to her Honour that the respondent had, in these adverse circumstances, felt unwanted and abandoned and that those feelings had buried themselves deep into her psyche and produced a need for and dependence upon alternative forms of support so that she should never again have to experience such insecurity, and her child should never have to feel abandoned in the way in which she had been abandoned. It was said that her relationship with Hook was not a firm one and that she was afflicted by fears that, unless she was self-sufficient, she may become trapped in a relationship much the same as her mother and father. Before she met Hook she was in receipt of the single parent's pension. She knew that when she and Hook bought premises in Kensington in 1981, and commenced to live together, it was wrong to continue to claim the single parent pension but that she was overborne by her perceived need to cater for the security and independence of herself and her son.

[24]

It does not appear clear from what was put to her Honour how or why the respondent commenced to claim unemployment benefits in 1987. At that stage she and Hook were living in their Kensington house, which they had purchased in joint names; and she was employed, and had been so since 1983, with the Royal Melbourne Hospital. Hook, too, was employed. The fact was that, when her entitlement to a single parent benefit ceased in 1987 for want of qualification (the child turned 18), she claimed unemployment benefits in the name of "Hook" and continued to claim them until 1999. Her employment with Royal Melbourne Hospital had continued to 1993 when she ceased to work because of back problems. She had injured her lower back in 1988 in a work related accident which led to laminectomy and fusion to the vertebrae of the lower lumbar and sacral spines in 1991. That injury seems to have led to a Workcover "payout" of $27,000 later in the 1990's and, in 1995, Royal Melbourne Hospital paid her superannuation claim in the sum of $9,000. It would seem that, as a result of their combined assets, she and Hook were able to pay off the debt outstanding upon their Kensington home, and the applicant acquired some freehold land in Burraboi, NSW. The respondent also bought some Telstra shares and, at the date of arrest, she had bank deposits totalling $75,000. Upon the determination of her employment with Royal Melbourne Hospital she commenced a business in McCauley Road, Kensington, buying and selling second hand goods. From 15 April 1996 she leased a shop in the same road which she operated on the same basis under the name and style of "Kensington Bargain Centre". She operated that business by herself, holding a second-hand dealer's licence and submitting tax returns. It was whilst she was running this business that she claimed and received a disability pension. There seems to have been no contest at the plea that she had a long term injury to her back which had been prolonged because of an infection which had developed at the operation site. Nevertheless, it was not disputed that she was able to conduct her business, and that she was not entitled to continue to claim the unemployment benefits or the disability pension, which, in any event, were mutually exclusive. Indeed, it was in 1995 that her father had died and she had become entitled to the inheritance to which I have earlier referred. Her persistent offending was explained to her Honour by the combination of circumstances which I have related, culminating in the almost pathological desire to maintain financial independence lest her position reduce itself to that which afflicted her parents. As I have intimated, however, her Honour had no evidence from the respondent, or her mother (who was said to be old and sick) or Hook, or from any psychologist.

[34]

(c) It could not be concluded that her Honour's discretion in ordering immediate release of the respondent had miscarried. It was the scheme of the sentencing provisions of the Crimes Act (Cth.) that a sentence of actual imprisonment should be a punishment of "last resort" and that, before such a punishment could be ordered, the judge had to be satisfied that no other sentencing option was appropriate (s.17A of Crimes Act (Cth)). This required her Honour to consider, as an appropriate sentencing option, the option of immediate release on recognizance (s.20(1)(b)); and that this Court, on a Director's appeal, should be slow to interfere with her exercise of that discretion, even though her Honour did not reveal any discrete reason for its exercise. Those reasons could properly be inferred from the mitigating material which she had before her. The Court, it was submitted, should be the more reluctant to interfere with that discretion having regard to the fact that the respondent has been at liberty for some months pursuant to her Honour's orders without any suggestion that she has been in breach of her recognizance. Indeed, there was material which was put before us, with the Director's consent, to demonstrate that the respondent had obtained a loan for the purposes of re-paying the outstanding balance of the amount owed in restitution; that she had suffered the opprobrium of contemporary publicity attending the initial sentencing process; that she has continued to work in a volunteer capacity with the Society of St. Vincent de Paul since sentence; and that she is suffering on-going symptoms of anxiety, depression and hypertension. In further support of his submission that the Court should not interfere with her Honour's discretion to release the respondent forthwith, Mr. Grace relied upon various sentencing statistics which had been placed before her Honour by the Crown. These revealed, he said, that, in cases like this involving "welfare frauds", the courts had commonly - indeed in nearly half of the cases contained in the statistics - released the offender forthwith or imposed other sentences which did not involve incarceration.

[35]

Powerful as the submissions made by the respondent are, I am satisfied that the sentences which the learned judge imposed on counts 3, 4 and 5 were wholly inadequate to meet the gravity of the respondent's course of criminal conduct; as was the judge's order to release the respondent forthwith from the sentences of imprisonment imposed. To allow those sentences and orders to stand would, in my view, distort proper sentencing standards in this State for the types of crimes which the respondent committed over such a lengthy period. The evidence before the judge disclosed that the respondent was a serial cheat of the welfare system over a period of 18 years. Her frauds came to an end, not because of any locus poenitentiae on her part, but because she was found out; and even then she was not prepared to make a "clean breast" of it to the investigating police. She had no real need to obtain the benefits which she was claiming. At all relevant times she was living in a de facto relationship and was employed, either with others, or on her own account. Indeed, during the last 4 years she was "double-dipping" into unemployment and disability benefits when she was expecting, and then receiving, a legacy of about $100,000 from her late father's estate. She, thus, had no compelling need to do what she did. When she was finally brought before the court to account for her frauds, she claimed that she had been driven by a deeply seated perceived need to establish some financial security for herself and her son lest they should be abandoned in the way in which she had been abandoned by her parents. This was, as I have noted, an explanation advanced by her counsel on her behalf without any evidential backing from herself, her de facto, or any other professional evidence. Insofar as it had any support at all, it came from her sister who confessed to having little contact with the respondent for many years. Indeed, on this appeal, very little was said to sustain the "perceived need" which figured so prominently before the sentencing judge. It is difficult to resist the conclusion that her systematic cheating of the "welfare scheme" was occasioned by the fact that she found it easy to misrepresent her way into benefits provided by a system in which the barriers were kept low to ensure that those who really needed support were catered for. In short, it is difficult to imagine a more deliberate case of cheating the revenue. The sentencing judge appeared to have recognized this because she said:

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Judgment (65 paragraphs)

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