Johnsson v Regina [2007] NSWCCA 192 | Case summary

1 BEAZLEY JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bennett DCJ at Goulburn District Court. The appellant (as I shall refer to the applicant) adhered to pleas of guilty which she had entered at Moss Vale Local Court to four Federal offences: two charges of dishonestly obtaining a gain from a Commonwealth entity contrary to s 135.1 of the Criminal Code Act 1995 and two charges of defrauding a Commonwealth public authority contrary to s 29D of the Crimes Act 1914 (Commonwealth). Otherwise unreferenced section numbers are to provisions of that statute. The prescribed maximum penalties for such offences are five years imprisonment and/or a fine of $33,000 and ten years imprisonment and/or a fine of $110,000 respectively. Section 29D was repealed with effect from 24 May 2001 but continues to apply to offences committed before that date. The misconduct of the appellant was essentially of the same character and extended over some years. The different charges reflect changes in the statutory regime. 3 On 12 August 1985 the appellant lodged a claim for a supporting parent's pension. This was granted and she received benefits under this and various substituted equivalents continuously until July 2001. She then applied for and was granted a Newstart allowance. In broad terms the appellant had an obligation to inform the Commonwealth via Centrelink of relevant changes to her situation. From time to time, some forty two letters of advice were despatched to her reminding her of what obligations she had to fulfil. In particular, she was reminded that she was required to report any income which she earned. 4 On 24 June 1987 the appellant commenced casual employment with the New South Wales Department of Education and Training. She remains a casual employee although she told his Honour that, since these matters had come to light, she had experienced considerably fewer offers of work. In addition, from 21 July 1997 to 30 April 2004 she was employed by the Catholic Education Office. From these employments she earned over $200,000 but declared none of this income to Centrelink. She lodged "review forms" necessary to maintain the Newstart allowance in which she expressly stated that she had done no work during the relevant periods. 5 The total "overpayment" received was calculated at $61,772.85. 6 The offences were detected when a data matching exercise was conducted with the Australian Taxation Office on 8 March 2005. 7 The appellant exercised her right to decline to be interviewed but on 20 July 2005 she wrote to Centrelink in these terms: "I needed to pay my debts as I was being issued court notices and threats….I was near a nervous breakdown at this time. In hindsight I probably should have resorted to bankruptcy but unfortunately I had no financial adviser to advise me about this process. I also wanted to pay my debts. I have always supported my daughter on my own without child support, a partner or any other financial help…I am not making excuses but just telling you my situation and why I needed a regular income." 8 It will be necessary to examine some detail of his Honour's impositions but the effective term amounted to a head sentence of three years imprisonment accompanied by an order that the appellant be released after service of twenty seven months on recognizance to be of good behaviour for two years, and a further order that the custody be served by way of periodic detention. His Honour had foreshadowed his intention during his remarks on sentence when he said: "I am going to sentence you to imprisonment for a total of three years. Of that three years you will be expected to serve twenty seven months in custody. At the conclusion of that twenty seven months, you will be subject to a recognizance release order which will be subject to conditions that I am going to specify namely that you be of good behaviour for a period of two years and that you submit to the supervision of the Probation and Parole Service specifically with the purpose of having an appropriate arrangement for the continued supervision of your financial affairs, to make sure that you overcome the problem that led you into the circumstances that brought you before me. I will direct that the sentence be served by way of periodic detention…..." 9 The sentences were imposed on 22 August 2006. In respect of the two offences contrary to s 29D his Honour initially imposed a sentence of two years imprisonment commencing on that day and in respect of the s 135.1 offences, sentences of one year's imprisonment commencing on 22 August 2008. He ordered the release of the appellant on recognizance after serving twenty seven months imprisonment and that the custodial element of the sentences be served by way of periodic detention. A further order was made for payment of $59,793.59 by way of reparation to the Commonwealth for the overpayment. This amount took into account some instalments already paid. 10 At the sentence hearing a question was raised about the commencement dates, having regard to the first reporting date of the appellant at a periodic detention centre, and his Honour then restated what he described as his amended sentences and orders. He proceeded to impose sentence for "dishonestly intend to obtain gain" (s 135.1) of two years imprisonment "on each charge" commencing on 2 September 2006, which he said was adjusted again "because it is one sentence in respect of both of those charges". He then said that "in respect of the two charges of defraud the Commonwealth" (s 29D) "on each charge" the appellant was sentenced to imprisonment for one year commencing on 2 September 2008 and expiring on 1 September 2009. He ordered release of the appellant on entering recognizance on 1 December 2008 after service of twenty seven months of the sentence. 11 There was no explanation for the apparent reversal of effective terms for the pairs of offences contrary to the respective statutory provisions, however, the overall effect remained unaltered except for the commencement dates. 12 I turn to the grounds argued by the appellant. 13 Ground 1 - The learned sentencing judge erred in imposing a sentence of periodic detention as part of a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Commonwealth). 14 To deal with this ground it is necessary to have reference to some of the statutory construct applicable to the sentencing of Commonwealth offenders. 15 Section 19AC (1) provides: " When a court must fix a recognizance release order 19AC(1) Subject to subsections (3) and (4), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and (c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence; the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period." 16 Whatever view is taken, the aggregate sentences in this case do not exceed three years. His Honour was therefore obliged to make a recognizance release order and thus it can be perceived that the appellant received a sentence of imprisonment for three years after service of twenty seven months of which she would be released on recognizance to be of good behaviour (with other conditions) for two years. 17 The relevant empowerment to order service by way of periodic detention which he directed is to be found in s 20AB (1): " Additional sentencing alternatives 20AB (1) Where under the law of a participating State or participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence." 18 The relevant prescription is made by Regulation 6 (fa) of the Crimes Regulations 1990: "6. For the purposes of section 20AB of the Act the following orders are prescribed: ……… (fa) a periodic detention order made under Part 2 of the Crimes (Sentencing Procedure) Act 1999 of New South Wales; …….." 19 The appellant contended that an order for periodic detention is not a sentence of imprisonment which can be fully or partially suspended under s 20(1)(b): "20(1) Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit: ……… (b) 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 paragraph (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 subsection 19AF(1)." 20 There is nothing in the legislation which distinguishes imprisonment which is ordered to be served by way of periodic detention from the imprisonment which is specified in that provision. 21 The intrinsic error in the appellant's submission is the failure to recognize that, although there is expression of a "sentence of periodic detention" in s 20AB(1), the law of the participating State, in this case New South Wales, does not provide for the passing of a sentence of periodic detention on an offender. What is authorized is the passing of a sentence of imprisonment which may be ordered to be served by way of periodic detention. The terms of s 6 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) are: " Periodic detention 6 (1) A court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention." 22 Regulation 6 (fa) above set out is coordinate with the concept that periodic detention is the subject of an order, it is not itself a sentence. 23 The appellant sought to call in aid s 20AB(1A): "(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in subsection (1) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order." 24 This provision contemplates procedures different from those presently involved. There is no question of passing "another" sentence or making "another" order before passing the sentence. The applicable concept is the imposition of one sentence, that is the sentence of imprisonment, the service of which is ordered to be by way of periodic detention. The appellant referred to R v Togias [2001] 127 A Crim R 23. As was observed therein, s 20AB (1A) was suggested by the Law Reform Commission (ALRC Report Number 44, 1988, par 125) with a particular view to avoidance of precondition of sentencing to imprisonment in some jurisdictions when community service order was being imposed as it was thought undesirable to link the two. Coincidentally, it was pointed out in Togias that s 20AB(1A) was not tailored to meet the situation of an order that a sentence of imprisonment be served by way of periodic detention because an order for service of periodic detention without imposition of imprisonment would be meaningless. 25 Ground 1 should be rejected. 26 Ground 2 - The learned sentencing judge has erred in failing to consider the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 in the imposition of a sentence of periodic detention under s 6(1). 27 Section 44 of the Sentencing Act in its terms deals with the setting of a non-parole period: " Court to set non-parole period 44 (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 28 As can be seen in the terms of s 19AC (1) above set out, his Honour was obliged in this instance not to set a non-parole period. Section 44 has no application to the present case. 29 It is true that, arithmetically, the balance term of a head sentence of three years which remains after expiry of twenty seven months, at which point his Honour ordered recognizance release, is exactly one third of that period, and that this coordinates with the formula set out in s 44(2) of the Sentencing Act. It is also true that in dealing with Commonwealth offences for which a non-parole period has been specified, there has been recognized a convention that a ratio of non-parole period to total term within a range of 60 and 66⅔ percent should be applied: R v Bernier [1998] 102 A Crim R 44. Expressed in that fashion the Sentencing Act ratio would be 75 percent. 30 It was therefore submitted that his Honour erred in requiring the appellant to serve (albeit by way of periodic detention) 75 percent rather than 60 to 66⅔ percent of the total term of three years imprisonment prior to release on recognizance. I would reject this argument. The convention requiring division of term where a non-parole period is specified does not govern the principles to be applied when recognizance release is ordered. It can readily be seen that the proportions are not transferable when the concession (correctly made) is noted that there was no error by his Honour in setting a recognizance of two years duration which extends beyond the head sentence term of three years: R v Smith [2004] QCA 417. 31 I would reject ground 2. 32 Ground 3 - The learned sentencing judge has erred in applying s 4K of the Crimes Act 1914 (Commonwealth) to impose two aggregate sentences. 33 It is not disputed that s 4K is a provision which applies to summary offences. It provides: "4K ……. (3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. (4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence." 34 As was pointed out in Putland v The Queen (2004) 218 CLR 174, subsection (3) would be unnecessary if subsection (4) were to apply to offences charged by indictment. The present offences were indictable. 35 His Honour made the following observations in his remarks: "I note that in s 4K of the Crimes Act 1914 (Cth) subs (4) together with subs (3) or the relevant portions of subs (3) provide that if a person is convicted of two or more offences against the same provision of the law of the Commonwealth, the Court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. It does seem to me that the appropriate way to structure these sentences is to impose one sentence in respect of the two offences contrary to s 29D of the Crimes Act and another sentence in respect of the two offences contrary to s 135.1 subs(1) of the Criminal Code . The maximum penalty in terms of imprisonment for the s 29D offence is ten years and the maximum penalty for the s. 135.1 offence in terms of imprisonment is five years. I propose to sentence the offender to imprisonment for two years in respect of the two offences contrary to s 29D of the Crimes Act and cumulative upon that sentence a sentence of one year for the two offences contrary to s 135.1 subs (1) of the Criminal Code ." 36 I have already noted that his Honour, when stating the amended sentences, appears to have reversed his stated intention. Nevertheless, despite what would appear to be an erroneous intention to utilize s 4K, his Honour specified that in respect of "each charge" in the two pairs of charges, he imposed the terms of imprisonment which, by reason of his specification of the dates of commencement and expiry, were to be served for each two charges brought against the same statutory provision, concurrently with each other. 37 The identified error in referring to s 4K has led to no consequence calling for intervention by this Court. 38 Ground 4 - The sentence is manifestly excessive. 39 In his remarks his Honour analysed matters of mitigation which had been advanced on behalf of the appellant. It is not necessary to summarize all these matters but in particular, he took account of the situation concerning the appellant's daughter, her particular need for care and support which had been supplied by the appellant. He concluded that this was "what may be described as an exceptional case requiring some degree of leniency". No complaint is made that his Honour failed to take into account any relevant matter or that he wrongly took any matter into account. 40 There is ample authority for the proposition that those who abuse the social security system will face heavy penalties. It has been said that general deterrence is particularly important, one reason being that the imposition of meticulous checks before benefits can be obtained is likely to result in real hardship to persons in need: R v Sofer [1993] 70 A Crim R 570. Periodic detention (and home detention) are not generally appropriate for offences of defrauding the revenue of substantial amounts: R v Caradonna [2000] NSWCCA 398. 41 The general rule is that a custodial sentence is to be imposed in cases of social security fraud except in very exceptional circumstances: R v Winchester [1992] 58 A Crim R 345. 42 His Honour applied this rule. I see no error in his finding that the circumstances were sufficiently exceptional, however, the order to serve imprisonment by periodic detention has a strong degree of leniency built into it. This has been recognized in many cases: see R v Hallocoglu (1992) 29 NSWLR 67 and especially the case references collected at p 73E-F. 43 The offences by the appellant extended over a period of about eight years, during which she made numerous false statements as abovementioned. There is no challenge to his Honour's finding that the appellant's predicament came about largely as a result of her own doing and her incompetence in managing her affairs. He found that this offered little by way of mitigation. It is not encouraging to observe the comments by the Probation and Parole officer in his report of 28 June 2006 under the heading "Attitude to the Offence(s)": "Ms Johnsson stated that initially her offending was due to the complicated nature of Centrelink requirements and her unreliable casual teaching work. She asserted that by the time she became aware she was being overpaid she had became dependent on the financial certainty the Centrelink payments provided and she did not know how to confess her wrongdoing. She claimed a sense of relief when she was finally caught nine years after her offending began. In contrast to the above limited admission of responsibility, Ms Johnsson stated Centrelink 'rips people off' and they were responsible for her not obtaining any recent casual teaching work. The offender was unable to make the link between her actions and her current financial difficulties. She also blames Centrelink for hindering her ability to repay her debt as she is unable to refinance her house due to her not having any teaching income." 44 The sentence imposed was not manifestly excessive and the impositions lay within the range of the sound exercise of his Honour's discretion. 45 I would grant leave to appeal against sentence, but dismiss the appeal. 46 SIMPSON J: I agree with Grove J. **********

Johnsson v Regina

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