JANSEN -v- THE QUEEN [2021] WASCA 160 (7 September 2021)

4 For the reasons which follow, we would allow the appeal and impose a fixed pre‑release period of 16 months' imprisonment.

5 The facts of the offending were read to the sentencing judge by the prosecutor at the sentencing hearing. They were admitted by defence counsel.[3] They may be summarised as follows.

6 Newstart Allowance is a benefit payable by the Department of Human Services (commonly known as 'Centrelink') to persons who are unemployed and are looking for work. Whether a person is entitled to Newstart Allowance and, if so, the rate at which the benefit is paid, is affected by other income received by the person, including employment income.

7 The appellant reported her income to Centrelink on a fortnightly basis, as required. Payments of Newstart Allowance were deposited by Centrelink into a Commonwealth Bank account held in the appellant's name between 1 July 2013 and 6 August 2018, and between 20 August 2018 and 4 February 2019 into a Westpac Banking Corporation account held in the name of 'Debbie Mazurak'.[4]

8 Between 26 July 2013 and 19 January 2019, while in receipt of Newstart Allowance, the appellant deliberately under‑declared her employment income to Centrelink.

9 In respect of count 1, on 114 occasions between 26 July 2013 and 22 June 2018, the appellant falsely under‑declared her income, resulting in an overpayment of $67,053.64 in Newstart Allowance. During this period, the appellant made 38 false 'nil' declarations, 76 under‑declarations, and accurately declared her income on only one occasion. During this period, the appellant earned a total of $246,609.52 from her employment.

10 As to count 2, on eight occasions between 4 November 2018 and 19 January 2019, the appellant falsely declared her employment income, resulting in an overpayment of $3,811.19 in Newstart Allowance. The appellant made seven false 'nil' declarations and one false under‑declaration. Across this period, the appellant earned $18,339.43 from her employment.

11 At all material times, the maximum penalty for count 1 was 5 years' imprisonment and/or a fine of $51,000 and the maximum penalty for count 2 was 10 years' imprisonment and/or a fine of $126,000.

12 During the periods of her offending, the appellant was employed by five employers, mainly in retail businesses. In total, the appellant earned $264,948.95 from this employment, but only declared $23,979.21 to Centrelink. The appellant was only entitled to receive Newstart Allowance for 24 of the 137 fortnights during the periods of her offending. Overall, the appellant received $75,611.87 in Newstart Allowance, when she was only eligible to receive $4,747.04. Thus, the appellant's offending resulted in a total overpayment to her of $70,864.83 in Newstart Allowance.

13 On 15 May 2018, the appellant's offending was detected by a data match with the Australian Taxation Office. Centrelink invited the appellant to participate in a formal interview on 8 February 2019, but this did not take place. However, on 8 April 2019, the appellant wrote to Centrelink and stated:[5]

I am aware I was claiming a payment when at times I had not declared the correct wages - this was due to surviving financially and keeping a roof over my head for myself and my daughter.

14 The prosecutor advised the sentencing judge that immigration records showed that the appellant had travelled overseas on 10 occasions between 17 November 2013 and 5 September 2017.

15 From about January 2019 up until she was sentenced, the appellant had paid reparations to the Commonwealth of Australia of $100 per week. Prior to being sentenced, the appellant had repaid approximately $8,700.[6]

16 The sentencing judge was provided with a pre‑sentence report which provided information relevant to the appellant's background.

17 The appellant's childhood was described in the pre‑sentence report as 'challenging'. She was exposed regularly to family violence and alcohol abuse. She was also abused herself. Her parents separated when she was 9 years old. At around 12 years of age, the appellant and her siblings were placed into foster care.

18 The appellant and her ex‑husband were in a relationship for 25 years before separating in 2015. She has two adult children.

19 The appellant left school after year 10, and entered the workforce on a full‑time basis. She has been in regular employment since leaving school. In 2000, she and her then husband started a security business, in which she worked. In 2010, the security business was sold, and the appellant and her ex‑husband purchased a retail coffee franchise. In 2012, her ex‑husband opened a restaurant in Bali, effectively moving there full‑time. Income from the coffee franchise was used to support this business. The appellant, who had remained in Australia, began to struggle financially, resulting in the sale of the family home. Eventually, the coffee franchise was placed in liquidation by the franchisor in 2013. After a short period of unemployment, the appellant found work in the retail sector on a casual basis in various positions until, in 2018, while in Newman, she was employed in an administrative position. At the time she was sentenced, the appellant was employed as an office manager at an air conditioning and electrical services company.

20 The appellant has no physical or mental health issues.

21 The appellant has a short but relevant criminal history. In 1990, she was convicted in the Midland Court of Petty Sessions of one count of attempting fraud and was fined $300. On 7 March 2017, the appellant was convicted of one count of stealing as a servant, which occurred in early 2014.[7] She was fined $1,000 and given a spent conviction order.

22 The sentencing judge was provided with a number of references which spoke positively of the appellant.

23 In written submissions filed on behalf of the appellant, it was said that after her ex‑husband travelled to Bali, she was left to pay the family's living expenses and debts, and that her income, whether from Centrelink or from her employment, was used to pay those debts and everyday living expenses. In relation to the appellant's travel, it was said on behalf of the appellant that:

The majority of this travel was to try and salvage her marriage and recover some money from her ex‑husband. Travel between November 2014 and April 2015 was in relation to her eldest daughter's wedding as she got married in Bali. [The appellant's] mother paid for these trips.

24 The sentencing judge characterised the offending as 'calculated deliberate fraud for personal gain'.[8] His Honour noted that, in total, the appellant falsely reported her income on 122 out of 139 occasions.[9] His Honour found that, as a result of the appellant's conduct, she received '$75,600' in benefits when she was only entitled to receive $4,747. His Honour said that he was satisfied that the offending 'was driven by greed and not genuine need'.[10]

25 His Honour took into account as a mitigating factor the appellant's pleas of guilty at the earliest opportunity, albeit that the pleas were entered 'in the face of an overwhelming case ...'.[11] His Honour accepted that the pleas of guilty demonstrated contrition. He also accepted that the appellant had cooperated with authorities and had made restitution of approximately $8,700.[12]

26 His Honour observed that the appellant's employer had offered to repay the money the appellant owed Centrelink in the event that she was not imprisoned. His Honour said that this proposal could not influence the sentencing outcome.[13]

27 The sentencing judge emphasised the need for general deterrence; pointing out that offences such as those committed by the appellant were prevalent and difficult to detect.[14] His Honour observed that the appellant's criminal history included convictions for offences of dishonesty, as a result of which the appellant was not entitled to any leniency for good character, and that personal deterrence was a matter of some weight.[15] His Honour stated that the only appropriate disposition was a substantial term of imprisonment to be served immediately. He noted that the offending in relation to count 2 occurred as part of a continuing course of conduct, albeit after the maximum custodial penalty for the offence increased from 5 years' imprisonment to 10 years' imprisonment.[16] After imposing separate penalties, his Honour said that he considered that the total criminality warranted a total effective sentence of 2 years 6 months' imprisonment. Thus, he ordered that the sentence on count 2 be served concurrently with the sentence on count 1.[17]

28 With respect to the 'minimum term of imprisonment or a single non‑parole period' the appellant was required to serve, his Honour had regard 'to all the circumstances of the case'.[18] After announcing that 'the appropriate non‑parole period' was 22 months, his Honour said:[19]

In fixing the length of the non‑parole period to be served, I've had regard to the very serious nature of your offending, the extent to which the issue of deterrence must be given significant weight and the number of offences committed by you over this period of time or the number of occasions over this period of time, to the extent where the offending has just continued almost unabated throughout each change in your employment.

I have regard, as I've said, to the serious nature of the offending. I've said that the appropriate non‑parole period is a period of 22 months. Accordingly, I will direct that after you have served 22 months, you will then be released on your recognisance of an amount of $10,000 to be of good behaviour for the balance of the sentence imposed.

29 After the sentence was pronounced, the Crown prosecutor clarified with his Honour that the fixed period was in the form of a recognisance release order, and was not a non‑parole period: see s 19AC(1), Crimes Act.[20]

30 The ground of appeal is in these terms:[21]

The length of the pre‑release period imposed by the learned sentencing judge was manifestly excessive considering the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.

31 The appellant's written submissions refer to a number of sentencing cases decided in this State and elsewhere, including Jorissen v The Queen;[22] Thomson v The Queen;[23] De Faria v The State of Western Australia;[24] Payne v The Queen;[25] R v Thomson;[26] Coombe v The Queen;[27] Ivanovic v The Queen;[28] Yarak v The Queen;[29] Ord v The Queen;[30] McGuiness v The Queen;[31] R v Lovel;[32] Johnsson v The Queen;[33] Thomas v The Queen[34] and R v Hurst; Ex parte Commonwealth DPP.[35]

32 The appellant submitted that, apart from Johnsson (in which an order for periodic detention was made), the cases cited revealed that pre‑release periods imposed or upheld on appeal in cases involving frauds in the order of between $50,000 and $100,000 have ranged from release forthwith (after 4 months in custody) up to 15 months, including a period of 12 months in Jorissen where the offender in that case had proceeded to trial.

33 Counsel for the appellant submitted that the appellant's offending was of a broadly similar level of seriousness to the offending set out in the cited cases, or was less serious and, even having regard to the heightened need for specific deterrence given the appellant's prior dishonesty convictions, the length of the fixed pre‑release period was manifestly excessive.

34 The respondent submitted that the cases cited by the appellant prior to 4 April 2011 had to be regarded with caution as some of them, for example, R v Thomson, Coombe and Yarak, involved offences of omission not commission. The respondent sought to distinguish some of the cases cited on the basis that the mitigating factors in those cases were more compelling than in the appellant's case.

35 The respondent submitted that the appellant's offending was serious and that, having regard to the major sentencing consideration of general deterrence, the period of 22 months to be served before the appellant was to be released was not manifestly excessive.

36 The principles governing the fixing of the length of a non‑parole period for a federal offence are generally applicable to the fixing of the length of a pre‑release period under a recognisance release order: see De Hollander v The Queen.[36]

37 In determining whether a non‑parole period is manifestly excessive, the test for manifest excess applied to head sentences is applicable and regard is had to the sentencing standards for the offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness, and the antecedents of the offender.[37]

38 The principles applicable to the fixing of the length of a non‑parole period for a federal offence were recently summarised by this court in Soerensen v The Queen:[38]

Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must either fix a non-parole period in respect of those sentences or make a recognisance release order. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period or make a recognisance release order.

Section 19AC(1) provides, relevantly, that subject to s 19AC(3) and s 19AC(4), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, do not exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must make a recognisance release order in respect of those sentences and must not fix a non-parole period. Section 19AC(4) confers on the court a discretion, in particular circumstances, to decline to make a recognisance release order.

Section 20 is concerned with the conditional release of federal offenders after conviction.

By s 20(1)(a), where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the conditions listed in s 20(1)(a).

Section 20(1)(b) provides that where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, sentence the person to imprisonment in respect of the offence or each offence, but direct, by order, that the person be released, upon giving security of the kind referred to in s 20(1)(a), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences, that is calculated in accordance with s 19AF(1).

Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic; R v Hopkins; R v Ruha; Ex parte Director of Public Prosecutions (Cth).

The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen; Deakin v The Queen; Bugmy v The Queen.

The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy (531).

The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531). Sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence. The converse applies to sentencing factors in favour of mitigation. See Lam v The Queen. Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period. See Hili [41].

There is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on parole. In particular, it is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge must determine the length of the non-parole period by reference to, and application of, the principles identified by the High Court in Power, Deakin and Bugmy. See Hili [44]; Stipkovich [35].

It is necessary that both the head sentence and any non-parole period reflect the deterrent and punitive effects of a sentence for a serious offence. See, generally, Director of Public Prosecutions (Cth) v Gregory. An unduly short non-parole period for a serious offence may, depending upon the facts and circumstances of the particular case, tend to undermine the sentencing considerations of personal and general deterrence. See, generally, Director of Public Prosecutions v Bulfin. (footnotes omitted)

39 In our opinion, the fixed pre‑release period imposed by his Honour is manifestly excessive. This was serious offending, but not as serious as in the cases referred to at [31] above. It did not involve the use of false identities or aliases. It did not result in the gain of a very large sum of money. While the appellant had relevant prior convictions, these were, having regard to the penalties that were imposed, of limited seriousness. She pleaded guilty to the current offences at the first reasonable opportunity, was contrite, had cooperated with authorities and made some reparation to the Commonwealth. The appellant had never been to prison before. Personal deterrence was a relevant sentencing factor, but the fact of having to serve, for the first time, a term of immediate imprisonment is likely, on the facts of this case, to have produced the necessary deterrent effect. The period of 22 months is inconsistent with terms imposed for similar, if not more serious, offending.

40 The fixed pre‑release period imposed was 73.33% of the total term of imprisonment. Expressed in this way, it may be starkly seen as failing to reflect the mitigating factors in the case, including the appellant's good prospects of rehabilitation. In our view, the justice of the case required the imposition of a significantly lower fixed pre‑release period. The period of 22 months was, having regard to all of the circumstances of the case, unreasonable or plainly unjust. The ground of appeal has been made out. This court should impose a different and lower pre‑release period.

41 This court has all the material needed to impose a new pre‑release period. In addition to that material, counsel for the appellant informed the court that, since commencing her term of imprisonment, the appellant has engaged in a number of rehabilitative and vocational programs. Having regard to all relevant factors, we would impose a fixed pre‑release period of 16 months' imprisonment. The other sentences and orders made by his Honour should not be disturbed.

(3) The sentence imposed by Birmingham DCJ on 14 September 2020 is varied by setting aside the recognisance release order he imposed and substituting the following:

The appellant be released on a recognisance to be of good behaviour for 14 months in the sum of $10,000, after serving 16 months' imprisonment from 14 September 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[4] Mazurak was the appellant's surname before her marriage. It was not alleged that the appellant's use of this name was dishonest.

[22] Jorissen v The Queen [2017] WASCA 71.

[23] Thomson v The Queen [2014] NSWCCA 88.

[24] De Faria v The State of Western Australia [2013] WASCA 116.

[25] Payne v The Queen [2010] WASCA 177.

[26] R v Thomson [2009] SASC 237.

[27] Coombe v The Queen [2009] WASCA 105.

[28] Ivanovic v The Queen [2009] NSWCCA 28.

[29] Yarak v The Queen [2008] NSWCCA 298.

[30] Ord v The Queen [2008] NSWCCA 162; (2008) 186 A Crim R 475.

[31] McGuiness v The Queen [2008] NSWCCA 80.

[32] R v Lovel [2007] QCA 281.

[33] Johnsson v The Queen [2007] NSWCCA 192.

[34] Thomas v The Queen [2006] NSWCCA 313.

[35] R v Hurst; Ex parte Commonwealth DPP [2005] QCA 25.

[36] De Hollander v The Queen [2012] WASCA 127 [48], [77].

[37] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [49].

[38] Soerensen v The Queen [2020] WASCA 114 [84] ‑ [94].