Emms v Barr [2008] TASSC 49

Hrasky v Boyd [2000] TASSC 39; (2000) 9 Tas R 144, Kovacevic v Mills (2000) 76 SASR 404, McAree v Barr [2006] TASSC 37, referred to.

Respondent: Commonwealth Director of Public Prosecutions

Judgment Number: [2008] TASSC 49

1 The applicant has moved to review a sentence imposed by a magistrate on 25 June 2008. On 13 May 2008, she pleaded guilty to four counts of obtaining a financial advantage, contrary to the Criminal Code Act 1995 (Cth), s135.2(1).

2 The applicant was sentenced to four months' imprisonment, to commence from 24 June 2008, and was made the subject of a probation order for a period of 12 months to commence upon her release from prison.

3 The sole ground of appeal contained in the notice to review is that the sentence was manifestly excessive in all the circumstances. It was not strongly argued that the "head" sentence of four months' imprisonment was itself manifestly excessive, the main point taken was that the sentence was made excessive by the failure to make a recognisance release order, pursuant to the Crimes Act 1914 (Cth) ("the Act"), s20(1)(b). There is no challenge to the making of the probation order.

4 The notice to review was filed on 2 July 2008. A successful application for bail was made on 9 July 2008. That means that the applicant has spent 15 days in custody.

5 The offences related to the period between 10 November 2004 and 23 August 2006. The applicant was in receipt of a "parenting payment single" which was originally granted to her on the basis that she had one dependent child and was not then working.

6 On 22 March 2004, the applicant contacted Centrelink and advised that she had signed a fixed term contract of employment with a Launceston motel. She told them of her expected fortnightly wage. The magistrate was told that as a consequence of this, the applicant was no longer required to report to Centrelink each fortnight in order to receive her payments.

7 However, she was under a continuing obligation to report the receipt of income. The reporting system was done by way of "interactive voice response system" or via the internet. Over the 21 months period of the charge, the applicant substantially under-declared her income, declaring only $13,968 of the $43,780.63 that she had earned, resulting in an overpayment of the allowance totalling $11,124.15.

8 It is not clear from the statement of facts, but other material before the magistrate suggests that the offences were ones of omission. That is to say, the applicant simply failed to advise Centrelink of her income, as distinct from providing false figures.

9 The applicant is now 33, her date of birth being 27 March 1975. Upon detection of the offences in July 2006, the applicant declined the offer of an interview with Centrelink staff, but admitted the failure to declare her full income, in order to gain financially to assist in meeting her financial commitments. In July 1993, the applicant was convicted of five charges of stealing and fined the sum of $1,000 and made the subject of a supervised probation order for 12 months. These offences were committed when she was 17 years old.

10 At the conclusion of the statement of facts, the prosecutor submitted that a custodial sentence was warranted, "whether that be actual or with an immediate release".

11 In the plea in mitigation, the magistrate was told by the applicant's counsel that his client had been employed at the motel for approximately six years. Counsel specifically put his instructions that if she were remanded in custody or received an immediate custodial term, it would result in the loss of her employment. She had recently been offered a position with the motel as a night manager, which she hoped to start within the next week. That would provide her with paid accommodation, with consequent relief from rental payments and utility bills.

12 The applicant was an industrious person, having reached year 10 in her schooling and obtaining a certificate in hospitality from Drysdale House. She had worked in the hospitality industry at various places throughout her adult life.

13 She had a difficult upbringing, mostly, it would seem, because of her mother's alcohol abuse. She was very close to her father, who was essentially her sole carer, but he died in 1992. The offences committed in 1993 were said to be a consequence of behavioural problems following the loss of her father. In 2002, the applicant separated from her partner whilst she was six months' pregnant with her child, who is now aged 6. She found herself some $7,000 in debt as a result of her former partner's financial irresponsibility. After the birth of the child, she suffered post-natal depression, to which these offences were attributed. That depression worsened and she ultimately sought treatment.

14 The applicant was involved in volunteer community work and had engaged Anglicare in relation to financial management. She was making reparation by payments in the order of $40 to $50 per fortnight.

15 At the conclusion of the plea, the prosecutor submitted that there was no medical evidence before the court in relation to the issue of depression, and that if the magistrate intended to place any particular weight on that issue, it should be the subject of evidence. The magistrate ordered a pre-sentence report and adjourned the proceedings until 24 June 2008.

16 The pre-sentence report is dated 18 June 2008. Relevantly, it disclosed:

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The applicant had not lived with the father of the child since the child's birth, due to the father's drug use and violent behaviour.

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Her brother was of the view that the applicant was a good mother and a caring, helpful person. His opinion was that her financial decision-making had been a long term problem for her.

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At the time of the report, the applicant was contributing $130 per fortnight by way of repayment to Centrelink.

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The applicant did not drink alcohol or use illegal substances.

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The applicant described her offences as "stupid", saying that at the time she seemed to have more expenses than earnings. She said she knew what she was doing was wrong "... and meant to ring Centrelink but 'it got out of hand'."

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Poor management of money was considered to be a major factor in the 1993 offences. There was confirmation that she had made an appointment with a financial counsellor.

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The applicant was deemed suitable for a community service order and a supervised probation order was recommended.

17 When the matter came back before the magistrate on 24 June 2008, counsel then appearing for the applicant advised the magistrate that no issue was taken with the contents of the pre-sentence report, whereupon the magistrate remanded the applicant in custody until the next day.

18 On that day, the applicant's counsel submitted that the experience of being remanded overnight had been quite devastating to the applicant; and that she found the whole experience quite frightening. Counsel said that the applicant was very concerned as to what would happen to her child in the long term should she receive a sentence of imprisonment, and asked the magistrate to have regard to that important family commitment in considering sentence.

19 The material parts of the magistrate's reasons are as follows:

"I do have regard to what's been set out by your counsel and what's in the pre-sentence report. I note that you're, in substance, a person of good character apart from an offence of dishonesty in 1993, which is a significant gap. And that in some measure these offences are the result of a certain degree of indifference to your, it seems, your financial commitments. That is, that you have problems managing your finances. I note the report comment that your financial management or decisions have been a long term problem with you. Nevertheless, you have had every opportunity to address your mind to those problems.

However, in all the circumstances the offences are serious offences and I need to impose upon you a penalty which reflects their seriousness. I note the observation in the report that community service orders would be an appropriate or may be an appropriate matter to consider, but in all the circumstances a term of imprisonment is called for.

So what I propose to do is on each charge on the complaint to convict you. And you are sentenced on the complaint to four months' imprisonment. And that's to commence from when she was remanded in custody which was the 24th June. I also make a probation order for a period of 12 months upon her release from prison."

20 In the plea in mitigation on 13 May 2008, counsel noted the provisions of the Act, s16A; in particular, s16A(2)(p), and of the provisions of s17A. The Act, s16A, deals with the matters to which a court is to have regard when passing sentence; the particular subparagraph referred to speaks of "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants". Section 17A(1) provides that a court shall not pass a sentence of imprisonment unless the court is satisfied that no other sentence is appropriate in all of the circumstances of the case. Section 17A(2) imposes an obligation on a court which passes a sentence of imprisonment, to state reasons for the decision that no other sentence is appropriate.

21 It is not a discrete ground of the notice that the magistrate did not comply with the latter obligation under the Act and no specific argument was addressed to the point. It may be that given the submissions that were made, the magistrate's comments comply, as was held to be the case on that basis, in Diner v Edwards 52/1995. I am more inclined to the view that they do not comply, but I do not need to determine the point.

22 What this means though is that apart from the reference to the offence being "serious offences" and the need to impose a penalty which reflected that seriousness, there is no insight into the magistrate's reasoning process as to why imprisonment was the only appropriate sentence in the circumstances, and why a recognisance release order was not made.

23 Counsel for the applicant, Mr Hughes, referred to a table set out at page 430 of Warner, Sentencing in Tasmania, 2nd ed 2002. That table, presented by the author "as a very general guide", relates to custodial and non-custodial sentences imposed throughout Australia for offences under the Social Security Act 1991 (Cth), s1347 (a predecessor to the Criminal Code Act, s135.2).

24 The table is summarised by the author as follows:

"The most common outcome was a community service order (140 hours median) for a median overpayment of $6,846. Sentence of imprisonment (6 months median) were also quite common and the median overpayment obtained by offenders sentenced to imprisonment was $9,003. The majority of prison sentences (76 per cent) were accompanied by an order for release forthwith under s[20(1)(b) ...]. A further 20 per cent of offenders sentenced to imprisonment were ordered to be released on a recognisance after serving a specified period of imprisonment."

25 Counsel for the respondent, Mr Arendt, helpfully supplied statistical data for Tasmania relating to s135.2 offences and its equivalents. The data related to amounts obtained of between $8,000 and $15,000 and covering a period of about 10 years. There were 98 cases in total. Mr Arendt said that the applicant's sentence was within the range disclosed by the data, but at the high end. Mr Hughes' admittedly incomplete analysis was that some 70 per cent of the cases attracted terms of imprisonment as a head sentence, with 50 per cent of the offenders being released forthwith.

26 These statistics are, of course, a helpful yardstick, but do not supplant the examination of the particular circumstances of each case, and the application of the relevant principles to that case.

27 Mr Hughes highlighted a number of what he said were mitigatory features, and put them in terms of the matters which a court must take into account by way of the Act, s16A(2).

28 Dealing firstly with the short matters, counsel stressed the extent of the fortnightly reparation amount of $130 - (subs(2)(i)), the applicant's plea of guilty - (subs(2)(g)), and the prospects of her rehabilitation as shown by the recently increased work responsibilities, her voluntary work, and the salutary effect of the one night's imprisonment - (subs(2)(n)).

29 Mr Hughes dealt at greater length with the applicant's character and antecedents as referred to in subs(2)(n), and the probable effect that the sentence under consideration would have on her dependent, as referred to in subs(2)(p). As to the former, it was submitted that the prior matters were of some age and that the evidence of the applicant's now good character was not given sufficient weight. Particular emphasis was placed on the situation of the applicant's young child. This was a matter, it was said, which ought to have weighed heavily in the sentencing process.

30 The proper basis upon which this issue ought to be approached was analysed at some length by Evans J in McAree v Barr [2006] TASSC 37. His Honour said at par[21]:

"The Crimes Act, s16A(2)(p), required the learned magistrate to take into account 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependants'. Courts of Criminal Appeal in three States have held that this provision is declaratory of the common law and is not intended to change it; Sinclair (1990) 51 A Crim R 418 at 430, R v Matthews (1996) 130 FLR 230 at 233 and Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at 25 - 26. At common law the general principle is that a sentencing court should have no regard to the hardship which a sentence of imprisonment will have upon the members of an offender's family as hardship is part of the price to pay for committing an offence; Boyle (1987) 34 A Crim R 202 at 204 - 205. As explained in R v Wirth (1976) 14 SASR 291 by Wells J at 296:

'Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it ... .'

This general approach to hardship is not an absolute rule and it will be departed from in exceptional cases, Boyle (supra) at 205. In Wirth (supra) at 246, Wells J said:

'... hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.'

Even if established, exceptional hardship is not a passport to freedom. It is one of the factors that must be taken into account in all the circumstances of the case. In some cases it is entitled to great weight, in others to hardly any weight, Director of Public Prosecutions (Cth) v Gaw [2006] VSCA 51 [21]."

31 Whilst it is true that the material in this case did not immediately reveal any suitable person likely to be able to adopt the parenting role whilst the applicant was in prison, in that context, the period involved was relatively short. The fact that the applicant was a sole parent of a child aged 6, was a relatively significant one, but not one deserving of great weight to the extent of being conclusive as to whether immediate imprisonment was appropriate.

32 Mr Arendt, apart from highlighting the seriousness of the offences and the aspect of general deterrence, relied on McAree v Barr [2006] TASSC 37 as exhibiting similar features to this case. A 51 year old woman with a highly dependent mother was sentenced to 10 months' imprisonment to be released after serving three months. The amount involved was approximately $13,000. The sentence was held not to have been manifestly excessive.

33 It is well established that general deterrence assumes a primary significance when imposing sentence for offences such as these. The approach, to that effect, of various Australian courts was analysed by Underwood J (as he then was) in Hrasky v Boyd [2000] TASSC 39; (2000) 9 Tas R 144 at 147 - 151.

"... I do not think it can be said of any case that as a matter of principle, persons convicted of social security fraud should necessarily serve a sentence of imprisonment."

35 Similarly, in Kovacevic v Mills (2000) 76 SASR 404, in a joint judgment, Doyle CJ, Mullighan, Bleby and Martin JJ said at 411, par[39]:

"We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed."

36 In a passage relied on by Mr Hughes, their Honours, at 420 par[79], citing Yardley v Betts (1979) 22 SASR 108 at 112 - 113 and Vartzokas v Zanker (1989) 51 SASR 277 at 279 - 280, went on to point out that where it is consistent with the "first concern" of the protection of the community, the objective of the rehabilitation of the offender should be pursued.

37 I have carefully considered the ultimate issue in this case; that is, whether error has been demonstrated in the sentence being manifestly excessive. In general terms, the offending was serious. It was deliberate and conscious, and occurred over a relatively lengthy period of time. At the same time, however the amount involved was comparatively modest.

38 The magistrate mentioned the applicant's good character, apart from the offences of dishonesty in 1993, but made no reference at all to her employment situation or the situation as to the care of her child. The sentencing occurred but one day after the latter issue was cogently raised by her counsel.

39 In my view, the potential loss of employment was a matter of much significance in terms of the applicant's rehabilitation, and ought to have been given weight accordingly. In contrast with a different point, the prosecution had not taken any issue with the asserted fact as to the loss of employment. In addition, appropriate weight ought to have been given to the other personal circumstances of the applicant and mitigatory factors, as urged by her counsel. If the magistrate did consider these factors, I do not believe it was reflected in the sentence.

40 In the end I am persuaded that in the whole of the circumstances of this case, the sentence was manifestly excessive. The motion will be allowed.

41 The orders of sentence are set aside. In lieu, as I do not think it is necessary to interfere with the length of the term of imprisonment, the applicant is sentenced to four months' imprisonment, to commence from 19 August 2008 in order that the period of time spent in custody is properly reflected.

42 Pursuant to the Act, s20(1), I order that the applicant be immediately released upon her giving security by recognisance without sureties, in the sum of $1,000, that she will be of good behaviour for a period of two years from 4 September 2008. I will also make the applicant the subject of a probation order for a period of one year, to commence on 4 September 2008.