GRENFELL, Richard Gerald v R

GRENFELL, Richard Gerald v R - [2009] NSWCCA 162 - NSWCCA 2009 case summary — Zoe

[20]

$45,650.20 between about 25 October 1984 and about 11 November 1991.
- $45,099.60 between about 12 November 1984 and about 30 June 1997.
- $4,602.00 between about 1 July 1997 and about 4 February 1998.
- $27,598.00 between about 5 February 1998 and about 23 May 2001. 14 The maximum penalty for these offences was imprisonment for 10 years. His Honour imposed the same sentence of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 8 months for each s 29D offence. The ratio of the non-parole period to the head sentence was approximately 60 per cent. 15 The two s 135.1(5) offences were as follows:
- $12,236.65 between about 24 May 2001 and about 10 October 2002.
- $42,316.05 between about 11 October 2002 and about 19 June 2006. 16 The maximum penalty for these offences was imprisonment for 5 years. His Honour observed that although these offences were under a different Act, the same criminality was involved. He imposed the same sentence for each offence being imprisonment for 3 years and 3 months with a non-parole period of 2 years and 8 months. The effective ratio of the non-parole period to the head sentence was 82 per cent. Background facts 17 The applicant was born on 13 November 1932 in the United Kingdom. He emigrated to Australia and later married. In 1967 his daughter Karen was born. In 1972 he commenced claiming a social security benefit due to the fact that he was suffering from a permanent but not total loss of vision. 18 The offending conduct commenced in 1978 when the applicant claimed a second benefit also on account of impaired vision in the name of Gerald Deacon. The applicant was entitled to the first benefit but not the second. This second claim continued to be made from 1978 onwards. On various occasions the applicant supplied documentation as requested by the Commonwealth or engaged in correspondence with the Commonwealth in an attempt to continue to receive these benefits. The payments continued until 2006. Centrelink investigations commenced in 2005. The total amount overpaid to the applicant as a result of the offences was $203,669.21 over a period of 28 years. 19 At the date of sentencing the applicant was aged 75 and he was in ill-health. Evidence before the court demonstrated that he was suffering from progressive optic atrophy, hypertensive nephrosclerosis and degenerative changes in his lumbo sacral spine. Dr Pham's opinion was that a period of full time imprisonment would have a grave effect upon the applicant's health and well being. Dr Kelly gave evidence that he was at risk in prison due to his severe renal problems. This is referred to in more detail later in these reasons. Grounds of Appeal 20 The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the severity of his sentence upon the following grounds: 1. The learned sentencing judge erred in failing to consider or take into account the change in the legislature's policy toward the offences under s 29D.

[22]

The sentences imposed were manifestly excessive. Ground 1 21 By the time that the applicant was sentenced the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 1999 (Cth) had been enacted. Items 148 and 149 of Schedule 2 of that Act repealed ss 29A, 29B, 29C, 29D and 30 of the Act and substituted various sections of the Code. Relevantly in the applicant's submission, the s 29D offences for which the applicant was sentenced were repealed. In its place were created a series of offences of general dishonesty under s 135.1. Those offences are obtaining a gain, causing a loss and influencing a public official. The maximum penalty for these offences is 5 years imprisonment. The applicant submitted that the provisions of s 135.1 of the Code would now cover the offending conduct and that the applicant should have been sentenced having regard to the reduced maximum penalty for which the new section provides. In particular, the sentences imposed for the s 29D offences were 4 years and 6 months predicated upon a maximum term of 10 years rather than a maximum term of 5 years. The applicant submitted that the sentences should be "significantly reduced" in order to take account of what is described as "the change of legislative policy". It was submitted that the issue in the appeal under this ground was the obligation of the sentencing judge to take into account the change in the legislative attitude to this type of offending and to reduce the impact of the maximum penalty accordingly. 22 In support of that submission the applicant drew upon the judgment of this Court in Ronen (supra). In that case it was argued unsuccessfully that the sentencing judge had erred in finding that the maximum penalty for offences under s 86A and s 86(2) of the Act was 20 years imprisonment. The Crown contended that the sentences imposed were manifestly inadequate, arguing that the sentencing judge erred in taking into account the maximum penalty for the offences under the Code or what had been said about the penalty for the repealed offences in the Executive Memorandum. Howie J said this: "[71] It is unusual in my experience to find a parliament acknowledging by act or statement that a legislatively prescribed penalty was excessive for the criminality inherent in the offence to which it related. Yet that is what occurred in the present case. In the future offenders, such as the applicants, will face a maximum penalty under the Code that is half of that which applied under the Act. The Executive Memorandum contains a clear acknowledgment that the penalty under the Act was "far too high". It is impossible in my opinion for a court, sentencing persons such as the applicants for offences under the Act, to ignore these two indications of Parliament's change of mind as to the seriousness with which it views the kind of conduct that was committed by the applicants.

[26]

Consistent with decisions such as that of the House of Lords in Scott [1975] AC 819 and Australian cases O'Donovan v Vereker (1987) 76 ALR 97 at 110 and Eade (1984) 14 A Crim R 186, the proposed offence does not require the prosecution to prove that the accused deceived the victim and as such falls below the appropriate level of culpability required for an offence with a maximum penalty of 10 years imprisonment. In recognition that the offence is much broader than fraud, it is proposed that section 135.1 should have a maximum penalty of 5 years imprisonment. Where there is evidence of deception, the more serious fraud offences should be charged (proposed sections 134.1 and 134.2). Indeed the vast majority of the offences charged under section 29D of the Crimes Act 1914 involve deception and can be charged under proposed sections 134.1 and 134.2. There will be the occasional case where obtain by deception cannot be charged. In those circumstances there may be questions as to whether it is appropriate that the person be charged with a serious offence, but there will no doubt be some cases where it is justified. Human ingenuity is such that schemes have been and will continue to be devised that make it difficult to establish that the accused deceived the victim. In most jurisdictions, including the UK, it has been decided that such schemes should only be dealt with where there is a conspiracy or by specific offences developed to combat the scheme after it is discovered (for example, taxation legislation)." 25 The Crown also referred to Ronen (supra) and relied upon the following: "[32] In my opinion the argument should be rejected for very much the same reasons as the sentencing Judge rejected it. The simple fact is that the maximum sentence prescribed by the repealed Crimes Act provisions were not reduced in any real sense. It is artificial in my view to describe the repeal of one offence and the enactment of a different offence as a reduction in the sentence for the repealed offence. Although the offences in s 135.4 of the Code may cover the same criminal activity as did the repealed Crimes Act provisions, they are different offences with different elements and are affected by the Code's provisions in relation to criminal responsibility in Chapter 2. The provisions of the Crimes Act were interpreted according to common law principles that are not completely identical to those that apply to the Code offences. For example, there is no requirement under the Code that the prosecution prove that the offender used dishonest means in carrying out the fraud as there was under the provision in the Act: see Peters v The Queen (1998) 192 CLR 493. It is clear from the second reading speech of the Attorney General that the new offences in the Code were not seen by the legislature as being simply a re-enactment of the offences in the Crimes Act and they should not be treated as if they were.

[27]

[41] However, notwithstanding that I am of the opinion that the maximum penalty was imprisonment for 20 years for the conspiracy offences, it may not necessarily follow that the fact that the maximum penalty for the fraud offences in the Code is imprisonment for 10 years is totally irrelevant. The Judge in the present case, as a matter of fairness and justice, took into account the change in attitude of the Parliament to the seriousness of the type of offences committed by the applicants when determining the appropriate sentences to impose upon them. The Crown has argued on its appeal that the Judge was in error in his approach in this regard and I will address this matter when dealing with the Crown appeal." 26 The Crown contended that while a sentencing judge is entitled to take that last mentioned fact into account, it is not an error to fail to refer to it. In any event, as both parties were at pains to emphasise, the offending conduct in this case spanned some 28 years and much of it occurred at a time significantly before the changes to the legislation. Moreover, the applicant's submission appears to overlook or to ignore the fact that the applicant was sentenced in relation to a number of offences that were to be served concurrently. That was an approach taken by the sentencing judge that was favourable to the applicant. 27 In my view the sentencing judge did not fall into error. As the authorities reveal, the legislative changes did not have the effect of re-calibrating the sentences for the offences with which the applicant was charged and to which he pleaded guilty. The significant issue in this respect is that for the most significant proportion of the extensive period over which these offences were committed, the penalties that applied were in line with those to which his Honour had regard. I agree with respect that the repeal of one offence and the enactment of a different offence do not operate as a reduction in the sentence for the repealed offence. The legislation does not say so and the implication that it did so is not strong. An argument to this effect is something to which a judge may, not must, have regard without falling into error so that the failure of a judge to do so does not correspondingly bespeak error. 28 This ground of appeal is not made out. Ground 2 29 Section 16A(2)(m) of the Act requires the Court to take into account in addition to other matters the character, antecedents, age, means and physical or mental condition of the person. His Honour said this in the course of his remarks on sentence: "I come now to consider the non-parole period. After discussions with counsel I have determined that it is appropriate in this court in dealing with Commonwealth offences to set the non-parole period in respect of all of the sentences which I have dealt with at this sitting today. The non-parole period must reflect the overall criminality involved. In this case it has been submitted on behalf of the offender that his disability, which has entitled him to the pension, and the frailty as a result of his age would require a significant reduction so far as the non-parole period of imprisonment [sic].

[33]

In addition, Dr Knoll states that within 28 days of arrival into custody, older patients have a long term health plan completed in which their ongoing health needs are assessed and organised and that, in summary, the Justice Health Service is able to co-ordinate ongoing medical care for older patients suffering from a variety of health problems including physical and mental illnesses and drug dependence. This report of Dr Knoll is of considerable assistance to the court and does not in any way detract from the need for the non-parole period of imprisonment to reflect the criminality involved." 32 In R v Smith (1987) 44 SASR 587 at 589 King CJ said this: "The state of health of an offender is always relevant to the consideration of the appropriate sentence of the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the conditions of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse impact on the offender's health." 33 In R v De Vroome (1987) 38 A Crim R 146 at 147 his Honour applied those remarks in the following passage: "The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment." 34 I can observe no basis for the submission that his Honour fell into error in any way in the manner in which he had regard to the evidence or applied it to the facts of the present case in the light of these authorities. I do not agree that his Honour failed to give sufficient weight to the applicant's disabilities or that he focused inappropriately upon the problems that these difficulties would present to the correctional authorities. The very nature of his Honour's deliberations was to have regard to the conditions in which and under which it might be expected that the applicant would be required to serve his sentence. The extent to which appropriate care and medical assistance is available, and the nature and extent of facilities that are at hand to care for prisoners with ill health, are factors that are directly related to questions of whether or not the applicant will or might be subjected to an unduly burdensome period in custody. There is no significant weight of medical opinion that suggests that the applicant's indifferent health will impose unique hardship upon him in the circumstances, even if his period in custody might reasonably if not obviously have been thought to be somewhat easier for him if he were well. The balancing exercise that his Honour was required to undertake having regard to the idiosyncratic nature of the applicant's combination of conditions and the need to impose a sentence that reflected the extent of his criminality does not appear to me to have miscarried. 35 Even though the applicant's age, physical disabilities and limited eyesight are in all likelihood going to make his time in custody difficult, they will not in my view make that experience so difficult as to attract the principles to which King CJ has referred. The necessary limitations that are imposed upon the extent to which an individual's health can operate as a factor favouring a lighter sentence apply to this Court's consideration of whether or not the sentencing judge fell into error. In my opinion no error has been demonstrated. 36 This ground of appeal is not made out. Ground 3 37 The applicant submitted that the individual sentences were manifestly excessive both when considered objectively and after taking into account the particular subjective features of this case. 38 For the s 29B offence the sentencing judge is said to have chosen a starting point, before a discount for the plea of guilty, of two thirds of the maximum penalty. For the s 135.1(5) offences the starting point is said to have been 87 per cent of the maximum before the same discount is applied. The overall non-parole period is, as already discussed, 2 years and 8 months. 39 These contentions are to be compared with, or considered in the light of, the following considerations. First, the offending persisted over a period of approximately 28 years. Secondly, the sum of $203,000 is not inconsiderable and was obtained in the course of a premeditated scheme involving a false identity. Thirdly, the offences did not cease until the applicant was detected. 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). 41 The Crown also submitted that the applicant's attention to the individual sentences imposed and their relevant starting points should yield as a matter of importance to the overall sentence that was actually imposed: Rutkowskyj v R [2008] NSWCCA 10; SZ v R [2007] NSWCCA 19, (2007) 168 A Crim R 249; cf TYN v R [2009] NSWCCA 146 at [34]. 42 In my view the sentences imposed by his Honour were within the range of sentences imposed for like offences. The sentences were not in any sense outside what might be expected to apply in cases involving the level of systematic and repeated deception that was the hallmark of the present offences. Comparison with cases such as Bick v R (supra) and Charkawi v R [2008] NSWCCA 159 makes this clear. Having regard to the principle of totality I observe again that the complete absence of any accumulation of the sentences imposed for the individual offences amounted to a significant amelioration of the sentences overall. 43 The sentences imposed by his Honour were not manifestly excessive. This ground of appeal is not made out. Orders 44 In my opinion, leave to appeal should be granted but the appeal should be dismissed.

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