Eyeson v R

The sentencing judge's remarks on sentence

1. The sentencing judge described the offending behaviour as demonstrating "a serious case of its kind". His Honour emphasised in this regard the significant sum of money that the applicant received by deception, noting that the fact that the applicant was properly in receipt of other significant benefits of more than $250,000 suggested that "the fraud was carried out for the purposes of greed rather than need". His Honour emphasised the seven-year period over which the offences were carried on (eliminating any possible excuse of accident or inadvertence) and found that the offending was "of a relatively sophisticated nature" which involved the maintenance of a number of different identities. The sentencing judge also noted that the offending only completely ceased after detection, albeit the applicant had voluntarily desisted receiving two of the three payments before ultimate detection.
2. The sentencing judge noted that the applicant had offered assistance, which the authorities did not pursue. His Honour took the offer into account as bespeaking the applicant's willingness to facilitate justice and that she was remorseful, although it did not qualify for a specific discount.
3. His Honour referred to the importance of general deterrence in cases involving social security fraud. His Honour also took into account the hardship that the applicant and her family could suffer as a result of a sentence of imprisonment, referring to the applicant's two youngest children and the likelihood that they would travel to live with her mother-in-law in Ghana. His Honour also referred to the applicant having previously been charged with an offence of fraud in Queensland, which occurred when she was relatively young and involved the use of a credit card that she was not entitled to use. As no conviction was recorded (the applicant was required to pay a fine) his Honour was prepared to find that the applicant was a person of "relatively good, prior good character"; but that finding was tempered by the period of seven years over which she had committed the offences in question.
4. When addressing the applicant's background, the sentencing judge referred to her age and her four children; that she had reported some difficulty with the Australian culture; and that her family maintained strong cultural traditions associated with their Ghanian heritage. In relation to her marriage to Applause, his Honour said the following: "The offender married her first husband when she was 20 and had her first two children with him. They are now aged nine having been born ten months apart. She describes a turbulent and domestically violent relationship with her first husband which escalated over time. Ultimately she left her husband and sought refuge in a shelter in the ACT. There is evidence from the shelter confirming her living there for a period of time until she was able to obtain public housing of her own in the ACT. As I understand it, there is a shared parenting arrangement in place for the two older children but it requires the offender to drive to a midway point between Sydney and the ACT for a handover."
5. The sentencing judge noted that the psychological testing that the applicant undertook indicated she suffered from depression and anxiety, which would make it harder for her when she was in custody, on account of which he would reduce the sentence to some extent. His Honour also noted that the applicant was contrite and remorseful and found that she had reasonable prospects of rehabilitation. The applicant had also pleaded guilty at the first opportunity, entitling her to the full 25% discount.
6. I have referred to the sentence of imprisonment that his Honour imposed at [3] above. The indicative terms his Honour gave for each of the offences was 3 years for each of sequence 1 and sequence 2, and 1 year, 6 months for sequence 5. In addition to the sentence of imprisonment, the sentencing judge made a reparation order under s 21B of the Crimes Act 1914 (Cth) in the sum of $293,243.68. The applicant did not challenge that order on appeal.

The grounds of appeal

1. The applicant's two proposed grounds of appeal concern whether the sentencing judge mistook the facts in concluding that the charges post-dated conduct of her mother and ex-partner which pressured the applicant to commence and continue the fraud (Ground 1), or erred by failing to take into account the evidence of the involvement of the applicant's mother and ex-partner in the commencement and continuation of the fraudulent activity (Ground 2).
2. It is apparent that the sentencing judge acknowledged and accepted the applicant's description of her relationship with Applause, including that it was marked by violence. However, his Honour did not address the applicant's evidence, or the submissions made on her behalf, about the influence that Applause and her mother exerted over her to engage in the conduct the subject of the offences. In the face of that evidence, the remarks needed to consider the role that Applause or the applicant's mother played in the applicant's offending. In my view the applicant had advanced a material consideration in this regard, and the absence of any reference or findings directed to it indicate that his Honour failed to consider it. Ground 2 is made out.
3. As both parties accepted, there was a clear chronological overlap between the applicant's offending and her evidence concerning the influence of, at least, Applause. The applicant's relationship with Applause was "off and on" from about 2011 until February 2019; and it became violent by about the first year, including in response to her unwillingness to commit fraud. Sequences 1, 2 and 5 commenced in December 2012, February 2013, and July 2015, respectively, during the period of their relationship; and the conduct the subject of sequences 1 and 5 ended either during or shortly after the relationship in February 2019 and July 2018, respectively, whilst sequence 2 continued until 20 April 2020.
4. It is apparent from the reasons that the sentencing judge misunderstood the overlap of the relationship and the offending. As the Crown submitted, his Honour appears to have treated the applicant seeking refuge in a shelter in the ACT, to which reference was made in the Referral Letter, as marking the end of her relationship with Applause, when that was not the case. That his Honour misunderstood the position is supported by the absence from his Honour's remarks of any reference to the applicant's relationship with Applause beyond April 2013. The Crown accepted that it followed from this reasoning that his Honour must have proceeded on the basis that the applicant's offending largely post-dated that relationship. I agree. Ground 1 is also made out.
5. I note that in support of Ground 1, the applicant relied on exchanges between the sentencing judge and defence counsel during the proceedings, to which the Crown objected on the basis of authorities such as Daniels v R [2007] NSWCCA 372 and Hughes v R [2008] NSWCCA 48. As I have concluded that the ground is made out on the basis of his Honour's reasons, it is unnecessary to consider the transcript of argument and the scope of available arguments in respect of it.

Resentence

1. It is necessary to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"). In Turnbull v R [2019] NSWCCA 97 at [40], Simpson AJA emphasised the need for an appellate court that re-exercises the sentencing discretion "to put aside the sentence imposed at first instance". Her Honour described the process in the following terms at [44]: "… the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that 'no lesser sentence is warranted in law'. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] and [Baxter v R [2007] NSWCCA 237; 173 A Crim R 284], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."
2. The governing principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. I have considered the matters identified in s 16A(2) of the Crimes Act to the extent that they are relevant to the applicant, the sentencing judge's findings as to which were largely unchallenged.
3. The key issue between the parties on resentence having regard to the errors I have identified was whether, and if so to what extent, the applicant's offending behaviour was, as to its commencement and/or continuation, due to pressure she was placed under by Applause and/or her mother, and what impact those findings should have on the sentence. In R v Day [2009] SASC 84, to which Johnson J referred with approval in Tiknius at [41], Sulan J (Doyle CJ and White J agreeing) stated at [35]: "There may be instances in which a person acts under fear or from threats as a result of which he may be considered to be less culpable than an offender who is not under pressure to offend. The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in Trocko [(1988) 142 LSJS 412]. He said: 'I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjective or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty must depend on the circumstances of the particular case.'"
4. Although the Crown submitted on the appeal that it was not clear whether the applicant was expressly invoking the principle of non-exculpatory duress, it accepted that as a matter of substance, the circumstances of the applicant's relationship with Applause, if her evidence was accepted, and any finding of pressure or influence from Applause that was operating on her at the time, could be relevant to an assessment of the applicant's moral culpability. Determining the weight that should be given to these findings involves consideration of the form and duration of the conduct, the nature of the threats made and the consideration of opportunities which were available to the applicant to report the matter to relevant authorities: Tiknius at [49].
5. On the basis of the evidence of the applicant and her report to Ms Burgess, the truth of which she adopted, I find that at the time the applicant commenced the offending conduct, she was in a controlling relationship with Applause which was marked by threatened and actual physical and sexual violence. Applause wanted the applicant to engage in the offending conduct and demanded that she do so "[t]o help the family". On her evidence, violence developed when she expressed reluctance. As Ms Burgess observed in the passage I have extracted at [21] above, the applicant's report that she went along with it to avoid drama and prevent Applause being angry towards her was typical of victims in relationships characterised by coercive control. The control that Applause exercised included control of her finances, with the applicant required to provide the funds she received to Applause, who decided how much money she could spend. I find that in commencing the offending conduct, the applicant was under pressure to do so from Applause.
6. The applicant's evidence that her relationship with Applause was "off and on" from about 2011 until 2019 raises the question of the extent to which pressure from Applause remained a factor in the applicant continuing to engage in the offending conduct. As the sentencing judge found, the period of offending was seven years and four months, and involved both of the children the applicant shared with Applause. In my view, the most telling evidence in support of Applause continuing to exert some influence over the applicant's offending conduct throughout this period was that when the relationship ended in 2019, she ceased providing the agency with the documents it required for her to continue receiving the benefits. Additionally, in discussing with Ms Burgess her choice to repeat the process with her second child, the applicant reported that although it was "easier" as she had already gone through the process, she was not eager to risk it again, and confirmed that she remained in the relationship with Applause at that time. That the relationship between the applicant and Applause continued throughout the period was also supported by the applicant's account to Ms Burgess of her moving out to a women's refuge in 2018 only to return to the relationship shortly thereafter.
7. I am not satisfied on the applicant's evidence that her mother had the same or any similar degree of influence over her conduct as Applause. The applicant did give evidence that she had a lot of pressure from her mother and from Applause. However, she also gave evidence that when she was not able to do something that her mother wanted her to do, Applause would ask her to do it; and when asked to give an example, she referred to "the Centrelink fraud charges" (Tcpt, 11 November 2022, p 7(39)-8(8)). This suggested that her mother's influence was not relevantly operative on the applicant's decision to commence or continue the offending, by contrast with the degree of control exercised by Applause. Additionally, in the account of her offending that she gave Ms Burgess, the applicant did not refer to her mother as pressuring her to engage in the offending conduct. Rather, she described her mother as reassuring her that she would not get caught, and guiding her through the process. I have thus proceeded on the basis that Applause was the only source of pressure that was operative on the applicant's decisions to engage in the offending conduct and to continue to do so.
8. The Crown submitted that a finding that pressure from Applause was a factor in the applicant commencing and continuing the offending conduct was contradicted by the content of the letter she wrote dated 9 November 2022, that was tendered on sentence. In that letter, the applicant wrote that there was no excuse for her conduct, for which she accepted complete responsibility; and that she had no one to blame but herself for her bad decisions. I do not consider that the applicant's acceptance of responsibility, and a finding that Applause exercised control over her decision-making, are mutually exclusive. The applicant did not, in her evidence or in the submissions made on her behalf, seek to abdicate responsibility for the choices she made. Rather, the applicant sought to raise, by her evidence and the Assessment Report, what was operating on her mind when she made the decision to commence the offending, and to continue it.
9. The Crown also submitted that the history reported by the applicant in the Assessment Report must be viewed in the context of that report as a whole. The Crown highlighted that Ms Burgess stated that the applicant's responses to personality assessment questions appeared to be exaggerated, such that the results needed to be considered "with caution". The Crown also submitted that the applicant had an unreliable approach to self-reporting, as demonstrated by her letter of apology in which she stated that she had "never been arrested and charged with this serious crime", only to accept, under questioning from the sentencing judge, that she had been arrested for fraud in Queensland in 2010.
10. I do not consider that it follows from the applicant's results on the Personality Assessment Inventory, in respect of which Ms Burgess observed "some idiosyncratic responses" and thus reviewed them with caution, that her account of her relationship with Applause and its impact on her offending was not credible. Nor do I consider that any discrepancy between what the applicant wrote in her letter about never having been charged "with this serious crime" and the fact that she had been charged with dishonesty offences in Queensland has an adverse impact upon the credibility of that account. When questioned by the sentencing judge, the applicant readily answered that she had been arrested for fraud and was frank about the circumstances (Tcpt, 11 November 2022, p 15(41)-16(27)).
11. In finding that the applicant's offending behaviour demonstrated "a serious case of its kind", the sentencing judge observed that: the amount the applicant received was significant ($293,242.68); the offences were carried on for a period of seven years and four months; the offending was of a relatively sophisticated nature; it involved the unknowing use of two of her children; and it only completely ceased after detection (although the applicant had voluntarily desisted receiving two of the three payments before then). His Honour made those findings by reference to Tham v R [2020] NSWCCA 338 ("Tham"), in which Bellew J (Bathurst CJ and Hoeben CJ at CL agreeing) identified a number of matters that bear on an assessment of objective seriousness in offences involving social security fraud, including the amount of money dishonestly obtained, the period over which the offending occurred, and whether the offending only ceased after detection: at [50]-[52].
12. Counsel for the applicant took issue with the sentencing judge's findings on objective seriousness in light of what he submitted this Court should find regarding the pressure exerted on the applicant by Applause (which I have found) and the applicant's mother (as to which I am not satisfied). Specifically, counsel submitted that when the applicant's evidence was properly taken into account, she should not be sentenced on the basis that the entire amount of money was available to her, or on the basis that she was motivated by greed. He also submitted that the seriousness of the offence in terms of the period was reduced having regard to the overlap between the offending and the applicant's relationship with Applause.
13. In Paterson v R [2021] NSWCCA 273 at [29] ("Paterson"), Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing) referred with approval to the following statement of Johnson J in Tepania v R [2018] NSWCCA 247; 275 A Crim R 233 at [112] ("Tepania") as to the matters that can bear on an assessment of objective seriousness: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
14. Beech-Jones CJ at CL continued in Paterson at [31]: "An assessment of an offender's moral culpability includes both a consideration of the objective seriousness of their offence but also extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the full wrongfulness of their actions or control their conduct. Commonly this includes intellectual impairments and mental illness ([Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39] at [54]) as well as a background of social deprivation (Bugmy at [44]) including being raised in an environment where the abuse of alcohol was common ([Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38] at [57]; Craft v R [2021] NSWCCA 131 at [42])."
15. In DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 the Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) rejected a submission that an assessment of moral culpability always forms part of an assessment of objective seriousness. Nonetheless, by reference inter alia to Paterson and Tepania the Court accepted that some matters may affect both an assessment of objective seriousness and moral culpability: at [66]. The Court also observed in that case, as an illustration of the connection between the concepts of objective seriousness and moral culpability, that when factors are described as diminishing, or lessening, or reducing an offender's moral culpability, the reduction is "from a moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence": at [91].
16. The sentencing judge was correct to describe the offending behaviour in the present case as a serious case of its kind, having regard to the matters his Honour identified. However, it is also necessary to consider the applicant's personal circumstances in terms of the pressure Applause brought to bear on her in the context of their violent and controlling relationship, both to commence the offending and to continue it. In my view, those circumstances reduce the seriousness of the applicant's offending. I do not accept the Crown's submissions that the evidence was not sufficiently cogent to have a mitigatory impact on the appropriate sentence.
17. I am mindful of what Johnson J said in Tiknius at [50] of the need to keep in mind some of the policy considerations underlying the law of duress. His Honour referred in that context to what King CJ stated in Brown v R (1986) 43 SASR 33 at 40, that "[t]he ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police". His Honour also referred to the decision in R v Riddell [2009] NSWCCA 96; 194 A Crim R 524 ("Riddell"), in which Beazley JA stated that the courts have not taken the view that where duress is found in a sentencing process there is no point placing any emphasis on general deterrence: at [60]-[61]. The applicant sought to diminish the significance of cases such as Tiknius and Riddell on the basis that they concerned drug importations for which the maximum penalty was far greater than for the offences in question here. That difference may be accepted, but the rationale given for not diminishing the significance of general deterrence in the context of drug importation offences is nonetheless applicable to the offences with which the Court is here concerned.
18. General deterrence remains an important consideration in this sentencing exercise. In Tham, Bellew J cited the decision of this Court in R v Conway [2001] NSWCCA 51; 121 A Crim R 177, in which social security fraud was described at [14] as "a relatively easy crime to commit because persons who claim social security payments are often in genuine and urgent need, and there is no time to investigate their bona fides closely", the price of such speedy relief being "the risk of abuse by non-genuine claimants". Hunt CJ at CL had earlier stated in R v Purdon (Court of Criminal Appeal (NSW), 27 March 1997, unrep) at p 7: "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."
19. The primary judge considered that the applicant was entitled to a discount of 25% on the basis of her early plea. No issue was taken with the discount his Honour applied, and having regard to s 16A(2)(g) of the Crimes Act 1914 (Cth), I will apply the same discount to the indicative sentences.
20. In relation to the applicant's subjective case, the parties did not take issue with the findings of the sentencing judge and I have proceeded on the basis of those findings, including as to the applicant's age and upbringing, her offer of assistance, her expression of remorse, her prospects of rehabilitation and the hardship she would suffer in custody including by reason of her separation from the two young children she shares with Mr Eyeson. For the purposes of resentencing, the applicant additionally relied on her affidavit affirmed on 1 March 2024 which established the following: 1. The two children the applicant shares with Mr Eyeson were left in his care when she went to gaol. Her husband wanted to take the children to Ghana so that he could get help from his family, but he delayed throughout 2023 while the applicant applied for one of the programs where she could have her children live with her in custody. When the applicant was not received into a program by the end of 2023, Mr Eyeson made arrangements to take the children to Ghana, which he did in the first half of February 2024. 2. Before they went to Ghana, the applicant was able to keep in reasonably regular contact with her two children with Mr Eyeson, including in person visits and AVL calls. Since they have been in Ghana, at the time of her affidavit the applicant had spoken to them twice on the prison phone, with each call lasting for six minutes. 3. The applicant participated in a four-month custodial program between February and June 2023. She is taking four medications daily for anxiety, PTSD, night terrors and high blood pressure. 4. Upon release she is hopeful for a reconciliation with her husband and to return to their family home in Sydney with her two young children, and to work on getting custody of her two other children.
21. I consider that the matters in the first two paragraphs essentially confirm the position that his Honour foresaw in sentencing the applicant if she could not obtain one of the limited placements which accommodate young children living with their mother in custody. I have taken that material into account on that basis, as well as the matters in the third and fourth paragraphs, which confirm the sentencing judge's assessment of the applicant's prospects of rehabilitation.
22. I have reviewed the table of comparative cases that the Crown submitted to the sentencing judge, and relied on in the appeal, although I do not consider that the particular features of the present case find reflection in those cases in a manner that significantly assists the resentencing exercise.
23. The sentencing judge imposed an aggregate sentence. The power to impose an aggregate sentence for Commonwealth offences derives from s 68 of the Judiciary Act 1903 (Cth), which picks up s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; A Crim R 556 at [145]-[146] (Price J, Basten JA and Walton J agreeing); Kannis v R [2020] NSWCCA 79 at [10]-[11] (Johnson J, N Adams and Ierace JJ agreeing). In its submissions on the principle of totality, the Crown submitted that some accumulation of sentences was required to reflect periods which were solely referrable to a single charge and the separate acts of criminality that were undertaken to obtain the specific financial benefit relevant to each charge. However, it accepted that a degree of concurrency between the sentences was appropriate in light of the similar character and temporal overlap in the applicant's offending. The applicant accepted that some accumulation was warranted to recognise certain discrete aspects of the offending, but submitted that the notional accumulation that the sentencing judge applied, of one year, would not be regarded as lenient.
24. I consider that the indicative sentences for the three offences as follows should be as follows (applying the 25% discount to the indicative sentences): 1. sequence 1: 2 years and 4 months imprisonment; 2. sequence 2: 2 years and 4 months imprisonment; and 3. sequence 5: 1 year imprisonment.
25. I accept the parties' submissions on totality and would impose an aggregate sentence of 3 years and 4 months commencing on 10 November 2022.
26. I note that the sentencing judge made a finding of special circumstances with respect to the non-parole period. As the applicant is being sentenced for federal offences, special circumstances is not a relevant consideration: Doig v R [2023] NSWCCA 76 at [76] (Yehia J, Beech-Jones CJ at CL agreeing). That said, no issue was taken with the ratio between the head sentence and non-parole period that the sentencing judge adopted. I will impose a non-parole period of 1 year and 8 months, which expires on 9 July 2024. The sentence will be completed on 9 March 2026.
27. As I noted above, the applicant did not challenge the order for reparation that the sentencing judge made under s 21B of the Crimes Act and it will remain in place.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the sentence of imprisonment imposed on the applicant in the District Court on 15 November 2022 and in lieu thereof: 1. Impose an aggregate sentence of 3 years and 4 months imprisonment to commence on 10 November 2022 and expire on 9 March 2026. 2. Pursuant to s 19AB of the Crimes Act 1914 (Cth), set a non-parole period of 1 year and 8 months imprisonment. 3. Specify that the earliest date that the applicant will be eligible to be released on parole is 9 July 2024.
2. WRIGHT J: I agree with Mitchelmore JA.
3. HAMILL J: I agree with the orders proposed by Mitchelmore JA and with her Honour's reasons.

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