DPP(Cth) v ROBERTS

District Court of NSW|2021-08-05

REMARKS ON SENTENCE

The offender appeared at the Wagga Wagga Local Court on 17 February 2021 and pleaded guilty to one charge, namely that she: "Between 27 June 2012 and 26 November 2016 at Wagga Wagga in the State of New South Wales, by a deception, dishonestly obtained a financial advantage from another person, namely the Commonwealth, contrary to section 134.2(1) of the Criminal Code 1995."
The plea of guilty was adhered to at the initial sentence hearing on 28 April 2021. Noting the plea was entered in the Local Court and noting the provisions of s 16A(2)(g) of the Crimes Act 1914 (Cth) I allow a numerical discount of 25% for the offender's facilitating the course of justice including the utilitarian value of the plea of guilty.
The maximum penalty for the offence to which the offender pleaded guilty is 10 years imprisonment and/or a fine of 600 penalty units.
The matter involves what is commonly referred to as Social Security Fraud.
There was an initial sentence hearing on 28 April 2021. During the course of that hearing an issue arose relating to s 16A(2)(p) of the Crimes Act 1914 (Cth) which necessitated the matter being adjourned. After the matter was adjourned there was a change in legal representation. By reason of a number of submissions made by both parties at the second sentence hearing on 5 August 2021 the matter has become particularly complex requiring findings on a considerable number of issues.

Assessment

It would seem that the most important matters that inform the seriousness of a matter involving social security fraud are the amount of money obtained and the period of time over which the fraud was perpetrated. Other matters might include the extent and nature of the dishonesty and for e.g. in Grenfell v R (2009) 196 A Crim R 146 whether there were assumed identities and if so how many.
In the matter presently under consideration there is no suggestion of any assumed identity. However the offender obtained $125,432.49 over a period of nearly six and one half years. The offender deliberately and consistently over a number of years misstated her income to the relevant authorities. As the Commonwealth submits (paragraph 19 written submissions) the offending conduct only stopped when there was a data match. The offender did not stop the offending conduct of her own volition.
The Commonwealth submitted orally at the sentence hearing on 5 August 2021 that the matter was towards the upper end of matters involving social security fraud. Given the amount of money involved and the period of time over which the fraud was perpetrated I am of the opinion is marginally above mid-range. For the matter to be towards the upper end of the range of seriousness it would have to involve greater sums of money and matters such as false identities.
Nevertheless this is a serious example of a social security fraud.
Given the heading "A course of conduct" immediately before paragraph 13 in the Commonwealth's written submissions I infer that the Commonwealth submits that the actions of the offender constitute a course of conduct.
The conduct of the offender was ongoing and in that sense it was a course of conduct. The ongoing nature of the fraudulent activity by the offender has been taken into account in assessing the seriousness of the matter. It would be double counting to further take into account what is said to be a course of conduct.
There are no other offences to be taken into account.
Having set out the facts and having made an assessment of the seriousness of the matter and having noted there are no other offences to take into account sub-paragraphs (a), (b) and (c) of s 16A(2) of the Crimes Act 1914 have been dealt with. So far as subsection (e) is concerned the extent of the loss or damage is $125,432.49. Subsection (d) is not a relevant consideration in this matter.

Age and antecedents

The offender is 53 years of age and was aged between 46 and 51 at the time of offending. The offender has no criminal history.
Ordinarily the lack of record given the offender's age would be a significant factor in mitigation. However, as the Commonwealth submits the good character of the offender carries less weight in circumstances such as in the matter presently under consideration where the offending conduct continued for a number of years.
The Commonwealth cites as authority R v Grech unrep. NSWCCA 28.3.1993. Matthews J (Hunt CJ at CL Grove J agreeing) referred to the decision of Phelan. Hunt CJ at CL (Smart & James JJ agreeing) in Phelan (1993) 66 A Crim R 446 at 448 said: "This court has said on many occasions that prior god character is of les weight in such a situation of repeated offences over a period of time that it is when the offence committed is an isolated one."
Although the decisions of Grech and Phelan relate to offending contrary to the New South Wales Crimes Act there does not appear to be any reason why the matters of principle would not apply to social security fraud matters. Although there is only one charge in the matter presently under consideration, that charge relates to an ongoing course of conduct.
Despite the age of that authority I am not aware of any later decision that casts doubt upon the correctness of the principle, nor have I been referred to any by counsel. The offender still receives leniency as a result of her lack of record but that lack of record in this case does carry the same weight that it might in other circumstances.

Subjective Case for offender

The offender gave evidence when the matter was first before the court on 28 April 2021. I will deal with this issue later in these remarks but it was in the course of that evidence that the issue of hardship to a third party (ex-partner and now companion to the offender Ms Jacqueline Kennedy) arose for the first time.
Another significant aspect of the offender's evidence related to her personal background and formative years. The offender is indigenous. The offender grew up with adoptive parents, the adoptive mother being physically abusive towards her. Her adoptive parents were not indigenous.
The offender's natural mother was an alcoholic and left the offender who was then a very young infant in the gutter. The offender (p 9 transcript 28.4.21) gave a rather poignant account of her mother being sent to the Cootamundra Girl's Home until she was 18 and then seeking out her parents in Brewarrina in far north-western New South Wales. She later met her birth father and had a relationship with him, but it was never close.
So far as the physical abuse with her adoptive parents is concerned she described being her mother's punching bag, both verbally and physically until she was 21. She also gave an unchallenged account of being sexually abused by her adoptive brother until she was 21.
The evidence given by the offender is consistent with the account given to Patrick Sheehan, Psychologist - see paragraph 5 at pp. 2-3 of his report, exhibit 1 on sentence.
All of these factors go to enliven the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37, reducing the moral culpability of the offender. In this case it occurs to me that those factors achieve considerable weight.
While the Commonwealth accepts that the "Bugmy factors" are enlivened in this case the prosecution submit in effect that they should not be given excessive weight or that they overwhelm the seriousness of the offending. The Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J (as he then was) in R v Dodd 57 A Crim R 349 said at p. 354: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594."
The emphasis on the last sentence is mine. Dodd was affirmed by the Court of Criminal Appeal in the decision of R v Carroll [2008] NSWCCA 218 - see especially at [20]-[21]. That decision in turn was considered by the High Court and the appeal allowed - see Carroll v The Queen (2009) 83 ALJR 579. However nothing in that decision impacts on the extract above. The submission by the Commonwealth is valid and is one that will need to be considered in the determination of the appropriate sentence.
Exhibit 1 also sets out other aspects of the offender's personal background. It would seem (paragraph 7) that the offender struggled with formal education. She completed her Year 10 Certificate. She initially took an administrative position with a local TAFE but later joined the National Aboriginal Islander Skills Development Association (NAISDA) and she found that she had a talent for dance. She left after a couple of years because of what is described in the report as disillusionment. She has worked at the Junee Correctional Centre as a Correctional Officer and also as a Health and Cultural Adviser. She has also worked for the local Riverina Medical and Dental Aboriginal Corporation (RIVMED). She more recently worked in the Northern Territory.
The report of Mr Sheehan sets out that that the offender has never married and has identified as gay since 21 years of age. She has had few long term intimate partner relationships, the latest being with Ms Jacqueline Kennedy. It is apparent from material provided on 5 August 2021, especially exhibit 2 on sentence a letter from Ms Kennedy that that relationship is no longer intimate, but they are still close companions.
There are no issues so far as substance abuse is concerned but the offender reported to Mr Sheehan that she has used alcohol heavily since the age of 21. The offender has been a problem gambler for some time. Paragraph 12 of exhibit 1 sets out that the offender began using poker machines "habitually and recklessly" about 15 years ago. The report sets out that Ms Kennedy has the same condition.
Further, Mr Sheehan's report sets out that the offender has often gambled away her pay leaving herself short of money for basic needs. She took out a loan but gambled that. She has drawn down all of her superannuation. The offender told Mr Sheehan that gambling problems were a factor contributing to her current offences but that she continues (at least at the time of the preparation of the report) to use poker machines. The report indicates that she planned to get assistance in respect of her gambling addiction.
In this regard exhibit 5 on sentence is a letter from Ms Belinda Scott of Belinda Scott Counselling that sets out the offender has had a number of sessions with her but those sessions involved working through significant stress related to the offender's current relationship. Exhibit 8 is a letter from LikeMind Wagga Wagga indicating that the offender has attended seven appointments at that organisation. Two of the appointments were "Gambling Counselling" appointments.
Ms Kennedy in exhibit 2 on sentence recounts that the offender began to gamble with her. Ms Kennedy observes (page 2 exhibit 2) that "gambling became a bad habit".
Returning to Mr Sheehan's report at paragraph 14 he recounts that the offender detailed suicidal ideation to him. No actual attempts were made. The offender has been depressed essentially for the whole of her adult life. Mr Sheehan observes, correctly that (paragraph 15), "Of concern, Ms Roberts expressed a fixed idea that she would be unable to survive going to gaol and would end her life in the event of entering custody". Mr Sheehan opines (paragraph 16) that the offender has lived with a relapsing mood disorder for a number of years.
Mr Sheehan concludes (paragraph 23) that the current offending would not appear to be underpinned by antisocial personality, but borne out of poor judgment with gambling related financial pressure and short term problem solving. She exhibits symptoms of a Major Depressive Disorder and her mental health at the time of the preparation of the report was "tenuous". He recommends immediate assessment by Justice Health upon admission if the offender is sent to custody.
On the issue of the offender's gambling addiction, the authorities make it clear that generally addiction to either gambling or drugs will not mitigate penalty - see for e.g. R v Todorovic [2008] NSWCCA 49 at [58]-[59] per Hulme J. His Honour went on to say at [62]: "In this case there was not one tittle of evidence that the Respondent was less in control of her cognitive faculties or lacked the ability to make reasoned or ordered judgments or that her appreciation of the wrongfulness of her acts or their moral culpability was to any degree impaired. Furthermore, when one has regard to the nature of gambling addiction and to the fact that fraud, involving substantial sums of money, by gambling addicts in positions of trust is not uncommon, they are a perfectly appropriate medium to stand as an example. A progression from gambling affordable sums as an occasional light pastime to addiction involving unaffordable sums rarely happens overnight. It is impossible to believe that most addicts have no warning that gambling is becoming a problem and thus no chance to reflect on and deal with that problem or any underlying causes. It is also important that there be a substantial disincentive to those who, like the Respondent, are tempted to offend again and again, until the amount involved becomes, by the standards of most people and many employers in the community, huge."
It occurs to me that these observations are apposite in the matter presently under consideration.
In the decision of R v Henry (1999) 46 NSWLR 346 (Guideline Judgment on Armed Robbery) Spigelman CJ said at [203]: "Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected".
Howie J. (Tobias JA, Rothman J. agreeing) in R v Assi [2006] NSWCCA 257 said at [27]: "Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43".
It seems to me that the matters dealt with in [39]-[58] above taken with what I have said when dealing with the offender's lack of antecedents addresses the requirement of s 16A(2)(m) of the Crimes Act 1914.
The offender has shown contrition for her conduct. The following appears at p. 8 lines 20ff of the offender's evidence on 28 April 2021: Q: So what do you think you were thinking? A: Thinking I didn't have money for bread and milk because while I was at work Jacqui would take my key card and spend all my money and I've have to have some money to look after her. And yes, it was - it was wrong, very very wrong. Q: So now today what exactly are you remorseful for? A: For lying, deceiving the government, and - very sorry because now I put Jacqui's health at risk because she's getting sicker and we don't know who is going to be able to look after her now.
A little earlier in her evidence (p 8:05) the offender was asked, "Realising that it's stealing from the government have you thought about the impact it has on the community?" The offender replied, "Yes, I didn't realise that the impact would be I might be taking money away from indigenous communities that that it. I didn't realise that".
The offender also gave evidence that she had been seeing a financial counsellor, which is confirmed by exhibit 8. The Commonwealth submitted that I would make an order for reparation in the sum of $111,265.29. I did not understand that such an order was opposed by counsel for the offender. Accordingly, the offender has repaid $14,167.20.
However, as the Commonwealth submitted at the sentence hearing on 5 August 2021 the offender has not repaid the whole amount.
While the offender has shown contrition there is as always with any subjective feature a question of weight. Although the offender is entitled to consideration for contrition the weight given to that is not as great as it would be if the whole of the amount defrauded had been repaid.
Further, on the subjective case for the offender a number of character testimonial references were tendered without objection on 5 August, 2021. Those documents are: Exhibit 6: the letter from Ms Jennifer McMellon, who was the offender's team leader when she worked for RIVMED; Exhibit 10: the letter from Ms Gayle Kennedy, sister of Jacqueline Kennedy; and Exhibit 11: the letter from Cherie Vaughan who worked with the offender at RIVMED.
Ms McMellon implores the court that the offender not be sent to custody. She sets out details of the offender's history that have already been dealt with earlier in these reasons. Ms Gayle Kennedy confirms that her sister Jacqueline suffers from a significant number of health issues. She also sets out that the offender is "a deeply troubled young woman who had not yet come to terms with the trauma of being a member of the stolen generation". Ms Gayle Kennedy also speaks to the stress suffered by the offender in respect of caring for Jacqueline.
Further, Ms Kennedy is an Indigenous and Disability Advocate who while doing research connected with her employment found that aboriginal female prisoners were at greater risk of dying in custody. She pleads for leniency on behalf of the offender.
Ms Vaughan also deals with the offender caring for Jacqueline Kennedy and deals with some of the hardship that would be suffered by Jacqueline Kennedy if the offender went to custody. She also speaks of the trauma suffered by the offender as a result of issues already dealt with in these remarks.
I accept given the lack of record and the fact that the offender has sought professional counselling, details of which have been given when dealing with the offender's subjective case that there are good prospects of rehabilitation. Essentially for those same reasons I am prepared to find on balance that the offender is unlikely to reoffend.
I have now dealt with subsections (m) and (n) of s 16A(2) of the Crimes Act 1914.

General deterrence

Now I turn to the issue of general deterrence and s 16A(2)(j) of the Crimes Act 1914. Having heard a variety of Commonwealth sentence matters over the past several months one feature that is common is that the Commonwealth submits that general deterrence is of "paramount importance". This submission was made in this case and it has been made in a variety of other Commonwealth matters. One of the cases referred to in the Commonwealth's written submissions that is easily accessible to me is R v Purdon unrep. NSWCCA 27.3.1997. In that case Hunt CJ at CL (McInerney J, Donovan AJ agreeing) said: "The rationale stated for the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. Both types of fraud are widespread. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer. See Regina v David Fernanda Medina (at 6); Regina v Mears (at 145)."
I note the expression "…the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances…" I note also that line of authority relating to the supply of prohibited drugs in which almost identical statements were made until the decision in Parente v R (2017) 93 NSWLR 633.
At the sentence hearing I referred to the decision of the Court of Criminal Appeal of New South Wales in Grenfell v R (2009) 196 A Crim R 145 where Harrison J (Campbell JA, Latham J agreeing) said at [40]: "The Crown emphasised the line of authorities that underscores the heavy penalties that those who defraud the social welfare system might expect to encounter. See, for example, R v Sopher (1993) 70 A Crim R 570; R v Hinton [2002] NSWCCA 405, (2002) 134 A Crim R 286; R v Purdon (Court of Criminal Appeal, 27 March 1997, unreported). The importance of general deterrence when sentencing for offences of this type has also been emphasised: see R v Keir [2004] NSWCCA 106; Bick v R [2006] NSWCCA 408 at [16]; R v Purdon (supra)."
Since taking the submissions the Commonwealth has filed supplementary submissions in which the issue of the paramountcy of general deterrence is addressed. Reference is made at paragraphs 9 to 11 inclusive of those submissions to the decisions of R v Cameron; R v Simounds unrep SASC 19.7.1993; Keely v Department of Social Security unrep 30.7.1993 and Kovacevic v Mills (2000) 174 ALR 77 at 85 which are authorities for the proposition that general deterrence is paramount in matters involving social security fraud.
In Kovacevic v Mills Doyle CJ, Mulllighan, Bleby and Martin JJ said at [40]-[43] "In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213. [41] In some cases the length of the period during which the offending occurs, or the amount involved, or the devices used to effect the fraud, is likely to lead a court to conclude that a sentence of imprisonment actually to be served is required. As is always the case in sentencing, and as Cox J said in R v King, a sentencing standard is a general guide to those who have to sentence in the future, with certain tolerances built into it. [42] We agree with what Mullighan J said in Keeley v Department of Social Security (Unreported, 30 July 1993, Judgment No. S4075): "I do not think the Full Court in Cameron & Simounds v R (supra), in saying that the deterrent purpose of punishment must be paramount, was laying down a principle of sentencing that in all cases of fraud against the welfare system mitigating features of the circumstances of the offence and the offender can never assume prominence. The Court was speaking of the type of serious fraudulent conduct which it there had to consider. In the more serious types of cases, the need to deter others who are minded to deliberately and systematically defraud the system must prevail over matters of mitigation. However, in less serious cases the need for deterrence will not be paramount." [43] In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.
I have referred to an extracted from the decision of the New South Wales Court of Criminal Appeal in Grenfell.
Clearly, general deterrence is a significant aspect in any sentencing exercise involving social security fraud. That deals with subparagraph (j) of s 16A(2) of the Crimes Act 1914. I do not understand, however, the authorities or at least the more recent authorities go to the extent of determining that general deterrence is "paramount" in determining the appropriate sentence.

Other matters

A great deal of time at the sentence hearing on 28 April 2021 and on 5 August 2021 was devoted to s 16A(2)(p) of the Crimes Act 1914, i.e. hardship to a third party, namely in this instance Jacqueline Kennedy.
In her evidence on 28 April 2021 the offender referred (p 7) to the medical conditions suffered by Ms Kennedy. There was a significant volume of material made available relating to Ms Kennedy at the sentence hearing on 5 August 2021.
Ms Jacqueline Kennedy sets out at p 2 of her letter (exhibit 2) the assistance she receives from the offender. That includes that she depends on the offender emotionally; the offender lies down with her every night until she falls asleep. Ms Kennedy wakes with a coughing fit two to three times per week. The offender assists her if she vomits or calls an ambulance if that is necessary. The offender attends to all the domestic duties and the offender assists in daily living e.g. showering. Ms Kennedy says that she will not be able to live independently if the offender goes into custody. She does not have other family living in Wagga Wagga. She has three dogs which will make finding any alternate accommodation more difficult.
Exhibit 3 on sentence is a comprehensive medical report relating to Ms Kennedy. She suffers from multiple chronic illnesses that have varying impacts on her daily life. Firstly, she suffers from Systemic scleroderma with interstitial lung disease. This is a chronic autoimmune disease that affects the connective tissue of the skin, lungs, liver, heart and other organs. This was first diagnosed in 2006. The disease severely impacts on her lung function. She experiences significant pain and loss of function in her hands. Further, the report sets out that joint pain and swelling impacts on her fine motor abilities.
The report, exhibit 3 goes on to say that as part of the treatment for her condition Ms Kennedy requires frequent courses of high dose steroids which put her at an increased risk of osteoporosis. The diagnosis also puts her at an increased risk of cardiac failure.
Further, Ms Kennedy suffers from anxiety and depression. The author of the report (Dr Fikkers) says (p. 2) that Ms Kennedy "requires long-term, consistent, multi-disciplinary care for chronic illnesses which have a significant impact on her quality of life and functional capacity". The report then goes on the detail the current diagnoses, investigations and treatment. Clearly Ms Kennedy does suffer from a significant number of ailments and she is on a significant number of medications.
The medical condition of Ms Kennedy and her resultant needs are clearly set out in the letter from Ms Kennedy and the medical report. The issue is whether the condition and needs of Ms Kennedy reach the very high standard of exceptional before the probable effect on a third party is concerned. The Commonwealth also submitted, at least as I understood the submission that the court could not find a probable effect on Ms Kennedy. It seems clear enough from the medical material and the opinion of Dr Fikkers that there will be some adverse effect on Ms Kennedy if the offender does go to custody.
At the sentence hearing on 28 April 2021 I directed the attention of both parties to the decisions of R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 and R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222. In Hinton Howie J (Wood CJ at CL, Sully J agreeing) said at [31]: "It is now clear that the reference in s 16A(2)(p) of the Crimes Act to the "probable effect that any sentence or order under consideration would have on any of the person's family or dependents" should be read as if it were proceeded by the words "in an exceptional case": R v Togias [2001] NSWCCA 522 where many of the relevant cases concerned with the effect on a child of a sentence of imprisonment imposed upon the mother are considered in the judgment of Grove J. But each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. It should be emphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed.
In Zerafa Beech-Jones J extensively reviewed the authorities both in New South Wales and other Australian jurisdictions on s 16A(2)(p) of the Crimes Act 1914. His Honour at [133] said: "Since they were decided, Togias and Hinton have been applied by this Court in numerous judgments concerning federal offenders (eg Sowaid v R [2011] NSWCCA 177 at [39], R v Aller [2004] NSWCCA 378 at [23], Le at [25], Van Eeden v R [2012] NSWCCA 18 at [3] and at [36] to [39, Hawkins at [55]), Ihemeje v R [2012] NSWCCA 269 at [71], McCraw v R [2011] NSWCCA 162 at [11], Kertebani at [66], Elmir v R [2009] NSWCCA 22; 193 A Crim R 87 at [68] to [70]). Only in Le was the correctness of Togias and Hinton directly challenged as it was in this case, and in that case it does not appear that the Court was taken to the secondary materials."
His Honour went on to say at [139]: "The above represents only a sample of the judgments of intermediate courts of appeal that have considered or applied s 16A(2)(p). Contrary to Mr Game SC's submission, with the exception of the Australian Capital Territory, intermediate Courts of Appeal of all the mainland States have consistently construed it in a manner that requires that exceptional circumstances be demonstrated before its subject matter is to be given any, or possibly any substantial, weight. Nevertheless, the origin of that principle is a South Australian decision concerning legislation of that state. As best as I can ascertain, none of the judgments that have adopted or applied this principle has attempted to reconcile it with the express words of the section or considered the secondary materials concerning its introduction. In my view those matters invalidate the assumption upon which this stream of cases has flowed, namely that the section was not intended to modify the common law's treatment of hardship to an offender's family. "
I detected what I thought to be a little uncertainty in Ms Mendes' submission that the hardship that would be suffered by Ms Kennedy if the offender goes to custody would amount to exceptional within the meaning of the authorities. Despite that uncertainty the submission was made. There can be no reasonable criticism of counsel for making that submission. However, after giving the matter a great deal of consideration I am of the opinion that although it goes close the hardship that Ms Kennedy would suffer does not meet the standard of "exceptional" that is required by the authorities.
Be that as it may, the issue of the hardship that would be suffered by Ms Kennedy would undoubtedly go to the issue of the ratio between the actual time in custody and the total sentence if a sentence of full time custody was imposed. I come to this decision despite the submission from the Commonwealth to the effect (paragraph 8 supplementary submissions) that, "…it would be impermissible for the Court to substantially shorten the sentence, non-parole period or pre-release period without first finding that there is extreme hardship. The Crown submits that such a finding should not be made".
To give effect to that submission from the Commonwealth would mean effectively that the issues relating to Ms Kennedy are irrelevant to this sentencing exercise beyond perhaps some minor role in the "instinctive synthesis" in determining the total sentence or at least the starting point of that sentence. The determination of the ratio of the period to be spent in actual custody to the total sentence with a custodial sentence involves a significant range of factors that can vary significantly from case to case.
On this issue I note that there is no Commonwealth equivalent to legislation such as s 44 of the Crimes (Sentencing Procedure) Act 1999 of New South Wales setting out the requirement of the ratio between the time in custody and the total sentence. Further, I note the decision of Hili & Jones v The Queen is authority for the proposition that there is no "norm" of the ratio between the time in custody and the total sentence in respect of sentences imposed for Commonwealth offending.
Further on this issue I note in R v Pham [2014] QCA 287 (one of the "comparable" cases to which I have been referred) McMeekin J (Gotterson & Morrison JJA agreeing) said at [49]: "There have been cases involving relatively short non-parole periods for very significant deceptions perpetrated on the Commonwealth through social security fraud. They include R v Newton [2010] QCA 101 (3 months) and R v Hurst ex parte Commonwealth DPP [2005] QCA 25 (6 months).

Competing Submissions and "comparable cases"

Ms Mendes with her usual commendable thoroughness and attention to detail appropriately emphasised the strong subjective case including the medical material, the "Bugmy factors" and the precarious state of the offender's mental health. At the beginning of the further hearing on 5 August 2021 it was revealed that the offender was admitted to the Psychiatric Ward of the local Base Hospital on 27 July 2021 and released on 30 July 2021. She was readmitted for a day on 1 August 2021. However, no further report was tendered as to the mental health of the offender. The court offered an adjournment and that offer was not accepted.
The primary submission of counsel for the offender was that given the strong subjective case and in particular the issues relating to Ms Kennedy and taking into account other cases the total sentence would be three years or less and the court would suspend the operation of that sentence releasing the offender forthwith on her entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914.
The concept of suspended sentences was considered by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Kirby J (Gleeson CJ Hayne J agreeing with the outcome but making brief additional comments; Gaudron & Gummow JJ agreeing) said (footnotes omitted) at [74]: "The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The '[c]onceptual [i]ncongruity' involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all."
His Honour went on to say at [79]-[80]: "The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do" [80] The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend."
Further his Honour said at [84]: "In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application."
A little later Howie J in giving the judgment of the court in R v Zamagias [2002] NSWCCA 17 said at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."
Although his Honour was dealing specifically with s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (as it then was) it seems to me that with unfeigned respect the principles enunciated have a broader application.
The Commonwealth submitted that only a sentence of immediate imprisonment would be appropriate given the offending and the need for general deterrence.
The Commonwealth's representative too has been very thorough in the preparation of the matter. That preparation extends to a table of what are said to be comparable cases. Copies of those decisions in hard copy are annexed to the Commonwealth's submissions. I record my gratitude for the thoroughness of the preparation and the provision of hard copies of what are said to be the comparable cases. Those decisions are: 1. Pham v R [2014] QCA 287; 2. Dickinson v R [2021] VSCA 50; 3. Desborough v The Queen [2010] QCA 297; 4. Payne v R [2010] WASCA 177; and 5. Newton v R [2010] QCA 101
I understood both parties to submit that the closest decision factually to the matter presently under consideration was Pham v R. However, it occurs to me that the recent decision from Victoria in Dickenson is also quite close to the present matter. While those comparable cases are helpful and of some real assistance I note the caution expressed in a number of cases about following what are said to be like cases. In this regard I note Hili & Jones v The Queen [2010] HCA 45 and in New South Wales decisions such as Brown v R [2014] NSWCCA 214 at [81] per Garling J and the observations of Bathurst CJ in SS v R [2016] NSWCCA 197 especially at [62] and [63].
Noting the Crown's submission as contained in oral submissions the submission or concession that Pham is the closest factually to the matter presently under consideration is the ratio of the period spent in actual custody to the total sentence. I note that on appeal the period in actual custody was reduced from 9 months to 6 months but the overall total effective sentence of 3 years (noting that the sentences were concurrent) was maintained. I note that the criminality in Pham extended to the use of false names. The amount defrauded was $126,488.58, i.e. almost identical to the matter presently under consideration.
However McMeekin J at [52] in Pham observed that in Pham the Crime was committed because of the fear induced in the offender by the violence of a third party. His Honour went on to observe at [54] that the sentence imposed at first instance did not give sufficient recognition to the exceptional circumstances that prevailed in that case.
Dickinson involved an application for leave to appeal, which was refused. The sentence imposed at first instance was 2 years 6 months with release on recognizance after 12 months. The recognizance was for 3 years. The amount defrauded was $100,230 over a period of four and one half years.
Since taking submissions there has arisen in New South Wales an issue related to the COVID 19 pandemic. I have taken into account the decisions of Valentine v R [2020] NSWCCA116 at [59]-[62] and Mbele v R [2021] NSWCCA 182 at [96]-[104]

Conclusions

Having considered all matters to which I have referred I am of the opinion that the appropriate starting point for the sentence is 4 years. From that is deducted the 25% allowed for the plea of guilty, which takes into account the offender facilitating the course of justice and the utilitarian value of the plea. That results in a total sentence of 3 years.
Given the offending including the amount defrauded, the period of time over which the money was defrauded, where I have found the matter to be on the scale of seriousness and the ongoing nature of the offender's conduct and the need for general deterrence, I have come to the firm conclusion considering all of the matters to which I have referred in these reasons that there must be a sentence of immediate imprisonment.
There is the issue of the time the offender is to spend in actual custody before she is released on recognizance, noting that the total sentence does not exceed 3 years. I note that in the decision of R v Lamella [2014] NSWCCA 122 the judge at first instance was criticised for giving insufficient reasons for determining the non-parole period should be 50% of the total sentence. Price J (Garling & Bellew JJ agreeing) said at [63]: "In my view, a non-parole period of 4 years neither appropriately reflects the seriousness of the respondent's offending, nor does it ensure that the respondent is being adequately punished for his offences and does not take into account the fundamental importance of general deterrence."
Noting the sentence does not exceed three years there is no issue of a non-parole period in those words. There is still to be considered the ratio between the total sentence and the time in actual custody.
In the matter presently under consideration there are a number of complex considerations. These include the age of the offender, the fact that this is her first time in custody, the need for an extended period of supervision to ensure she receives appropriate assistance in reintegration into the community and appropriate assistance to deal with the gambling addiction and excessive consumption of alcohol. There is also the issue of Ms Jacqueline Kennedy, which to my mind is relevant to this aspect of the sentencing exercise. For more abundant caution I repeat my earlier finding that the issues relating to Ms Kennedy do not amount of exceptional circumstances for the purposes of s 16A(2)(p) of the Crimes Act 1914. However they are relevant in my opinion to the ratio of the period spent in actual custody and the total sentence. These matters in combination in my opinion bring about a result that the offender should spend less than half of the total sentence in actual custody. In that regard I note the result in Pham v R and also Dickinson v R where the offenders spent considerably less than half of the total sentence in actual custody.

Formal Orders

In respect of the offence to which she pleaded guilty the offender is convicted.
Consequent upon that conviction the offender is sentenced to imprisonment for a period of 3 years.
Pursuant to s 20(1)(b) and s 19AC of the Crimes Act 1914 I direct that the offender be released after serving a period of 10 months (i.e. from 10 September 2021 to 9 July 2022) upon her entering a recognizance herself in the sum of $1000 to be of good behaviour for a period of three years. That recognizance is conditioned that the offender: 1. Be of good behaviour; 2. For a period of 2 years or such shorter period as might be deemed appropriate be subject to the supervision and guidance of the Department of Community Corrections and further that she obey all reasonable directions of that department; and 3. Notify the Registrar of this Court of any change of address.
I make an order for Reparation in favour of the Commonwealth of Australia in the sum of $111,265.29.

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