Leighton v R

Leighton v R - [2010] NSWCCA 280 - NSWCCA 2010 case summary — Zoe

[22]

Subjective circumstances 15 The applicant was born in May 1937 and was 72 years old when sentenced. He left school at the age of 13 and went into the plumbing trade. He had worked as a plumber, a welder and a boilermaker. Medical reports were tendered which disclosed that the applicant suffered from a number of medical conditions including asbestosis, Herpes Zoster Opthalmicus, chronic back and neck pain, chronic asthma and bronchitis, pernicious anaemia, chronic sinusitis, osteoarthritis affecting knees and shoulders, chronic osteoarthritis generalised, musculoskeletal injuries, hypertension and depression. Various medications were taken for these conditions which were detailed in a report from Dr Rae Nelson-Mitchell (AB 306). The applicant had had a total right hip replacement about three weeks before he was sentenced. 16 The applicant gave evidence that because of his medical conditions he had difficulty dressing himself, that his walking was confined to short distances with the aid of a walker or walking stick, that he had difficulty standing or sitting for any length of time and was required to sleep with a pillow between his legs and one under his right leg. He described experiencing respiratory problems arising from his asbestosis, bronchitis and asthma. 17 Dr Nelson-Marshall in evidence before the Judge elaborated upon the applicant's medical conditions. He explained that Herpes Zoster Opthalmicus was a condition of shingles which involved the trigeminal nerve and reduced the applicant's vision. It was a reoccurring condition of which the applicant had suffered two episodes. The applicant would need to see an ophthalmologist for treatment so as to have drops to reduce the pressure and keratitis in the eye. 18 The Crown tendered a report from the Acting Clinical Director Justice Health in which the view was expressed that Justice Health would be able to provide the necessary services to care for the applicant whilst in custody. 19 A report from Don Finlayson, a psychologist, was tendered. The psychologist stated that the applicant's reported levels on the Depression, Anxiety and Stress Scales were "borderline severe/extreme depression, extremely severe anxiety and borderline moderate to severe stress". He opined that the applicant had suffered extreme psychological injury throughout his life. Two Probation and Parole reports were also before the Judge. In a report dated 10 September 2008, Ms Kennedy, a Probation and Parole officer described the applicant as appearing "to have little insight into the effects his offences may have on the community as he seems to be entrenched in a cycle of self victimization." Ms Kennedy, in a report dated 8 January 2009, considered that "it would now appear [the applicant] is taking more responsibility for his actions." 20 During the sentencing proceedings, the applicant told the Judge that he had used the money from the Commonwealth benefits to buy a hobby farm at Wellington. His interest in that property was transferred to his wife in accordance with a property settlement in the Family Court of Australia. He gave evidence of informing the privacy officer at the Queanbeyan Centrelink Office in January 2006 that had been receiving benefits to which he was not entitled. He said that he went to the Dubbo Centrelink office in the following year as his pension had been stopped, and was told (AB 43): "…this is the end of it now. You'll pay the money off and that will be the end you'll hear of it now. They spoke to investigators in Canberra and they said that will be the last thing…You pay the money off and when you die the debt dies." 21 The applicant's criminal history reveals many offences of dishonesty. His convictions include false pretences, stealing, passing valueless cheques and obtaining an advantage by deception. His last conviction was on 6 September 2001 when he was fined for passing a valueless cheque. Some findings by the Judge 22 In his sentencing remarks the Judge said that whilst the psychologist's report referred to the applicant having suffered from extreme psychological injury throughout his life, he was unable to understand how a difficult life could be an excuse for the false pretences activity over many years, especially when he was a man with good work qualifications - having become a plumber after leaving school. His Honour found that there was limited, if any contrition, rather the applicant's concern was that he had been finally brought to account. His Honour also found that given the applicant's history of false pretences and the deliberateness of the offending, it was hard to see any real prospects of rehabilitation. With the history of dishonesty, there was no room for any leniency. The Judge found that the offences were "a blatant attempt at personal enrichment" and "he knew exactly what he was doing."

[24]

"The submission did not address the reason why the Court takes delay into account. It is because of the impact on the offender, who after making full admissions of guilt and entering into an arrangement to repay the Agency, is lulled into a belief that the matter will be resolved without the intervention of the criminal law." 25 Reasons, other than an offender's belief that the matter will be resolved without being criminally prosecuted, which may be taken into account on sentence in the offender's favour as a consequence of inexplicable delay are (see Blanco v R [1999] NSWCCA 121 at [16]): "the uncertain suspense in which a person may be left"; "any demonstrated progress towards rehabilitation during the intervening period"; "…a sentence for a stale crime calls for a measure of understanding and flexibility of approach." 26 It was neither suggested that the applicant had progressed towards rehabilitation nor that the crime was stale. He did not give evidence of any reliance by him upon what was said by Centrelink or of holding the belief that he would not be criminally prosecuted. He testified that when he commenced getting the pension in the name of Leighton in 1996 (AB 34): "I knew there'd be trouble and I was threatened all the way through with it and I thought well it's got to come sooner or later and I'll just have to accept it when it comes." 27 In his sentencing remarks, the Judge gave consideration to the question of delay when he said (AB 90): "Whilst delay may be a mitigating factor on sentence where there has been unconscionable delay which may have created an additional unreasonable hardship, or lulled an offender into thinking that reparation was already in hand, I consider that in this case where the offender already had a history of dishonesty offences and himself had said that he was living in some trepidation since he'd deliberately commenced this fraud in 1996 of being found out that there cannot be any further unreasonableness in the time it took for the matters to be fully investigated and brought to court. He himself agreed that he had been living in some trepidation, a fear and uncertainty brought knowingly on himself since 1996. So insofar as there has been two extra years wait, it would not increase what concern he had been consciously living with since 1996." 28 It was open to the Judge, in my opinion, to conclude on the evidence that the delay had no adverse impact upon the applicant and was not a mitigating factor. 29 A further consequence of the delay was said by the applicant in this Court to be deterioration in his health. His eyesight had worsened and he had had major surgery for a hip replacement a few weeks before going into custody. This submission was not made to the Judge but nevertheless may be readily despatched. The evidence does not establish that the delay in prosecution impacted upon the difficulties that the applicant was experiencing with his vision and the hip replacement was required because of severe osteoarthritis. Fortunately for the applicant, he was able to have the hip surgery before he was imprisoned. I would reject this ground of appeal.

[26]

Yes he may find it uncomfortable and restraining and he refers to claustrophobia. However, the correctional service will have all the necessarily [sic] facilities to assist him. I cannot find that the health of the offender is such that there are extenuating or special circumstances such that a term of full time custody should not be ordered." 31 The applicant contended that the Judge erred as the evidence overwhelmingly pointed to the conclusion that custody would be more onerous for him on account of his disabilities and his Honour appeared to have regarded the evidence as irrelevant. It was not suggested that the Judge should not have sentenced the applicant to imprisonment but rather that he should have given some weight to the applicant's state of health. 32 The Crown argued that the Judge had correctly identified the applicable sentencing principles with respect to ill health and the findings made by the Judge were open to him on the evidence. The Crown also referred to Dr Nelson-Marshall's opinion that if treatment was maintained that incarceration would probably not have much impact upon the applicant's medical condition. 33 Dr Nelson-Marshall gave evidence that the applicant's chronic osteoarthritis would continue in his left side after the hip replacement and in his lower back, knees, hand and feet. He detailed the applicant's asbestosis, shortness of breath, chronic asthma and chronic bronchitis. When asked by the Crown in cross-examination, Dr Nelson-Marshall said: AB 28 L 44-50; AB 29 L 1-2: "Q. Well Mr Leighton is currently being treated for those multitude of conditions that you've referred to in certain ways with medication that you've mentioned. If that medication and treatment were available to Mr Leighton within the prison system - and you've said you don't know whether they are or not - but assuming they were then what impact could going to prison have on Mr Leighton's condition on those particular medical conditions that you've referred to in your letter?

[29]

35 The Judge referred in his sentencing remarks to the various health problems from which the applicant suffers and cited R v Smith (1987) 27 A Crim R 315 in which King CJ authoritatively considered the relevant principles whereby the health of an offender is properly taken into account on sentence. King CJ said at 317: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for 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 condition 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 effect on the offender's health." 36 In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (with whom McClellan AJA and Smart AJ agreed) considered at [11] that "it is only in a relatively rare case that the Smith principle is applicable." Where ill health is considered to be relevant to the determination of sentence, the extent of the mitigation is to be balanced against the seriousness of the offence: R v BJW (2000) 112 A Crim R 1. 37 It appears from the remarks quoted at [30] above that the Judge considered that the applicant's state of health neither provided a greater burden for him whilst in custody nor was there a serious risk of imprisonment having a gravely adverse effect on his health. His Honour gave no weight to the applicant's ill health as a mitigating factor on sentence. 38 Notwithstanding any treatment that might be provided by Justice Health there is an abundance of evidence, which demonstrates that the applicant's ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living. In re-examination, Dr Nelson-Marshall gave the following evidence (AB 29 L 40-50; AB 30 L 1- 4; L 10-15, L 33-44): "Q. Doctor what did you mean when you said that Mr Leighton was disabled?

[40]

A. Well he is disabled and very - he's been disabled for at least a year, probably longer. " 39 In my respectful opinion, some weight should have been given to the applicant's ill health in determining the sentences. This was not a case such as Grenfell v R [2009] NSWCCA 162 upon which the Crown placed some reliance in oral argument where the contention was that the sentencing judge erred in failing to give "sufficient weight" to the applicant's disabilities. When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest. I would uphold this ground of appeal. Ground 3: His Honour erred in imposing the same penalty for the second offence as that in respect of the first and third offences. 40 The applicant complained that the Judge made a Pearce v The Queen (1998) 194 CLR 610 error in that he determined that the same sentence was appropriate for each of the offences, whereas the offending in charge 2 was over a period of about 9 months and the overpayment amounted to $9,646 and was less serious than the offending in charge 1 and 3 which were committed over about 5 years (charge 1) and about 4 years (charge 3) and the overpayments in each charge were for amounts in excess of $49,000. The Crown argued that each of the offences were committed as part of a lengthy dishonest scheme involving the same "modus operandi" and the same false identity. The Crown submitted that it was not necessarily an erroneous exercise of sentencing discretion to impose a term of 3 years imprisonment for charge 2 alone and if any differentiation was required, longer sentences for charge 1 and 3 would have been more appropriate. 41 The Judge imposed a head sentence of 3 years for each offence. His Honour said (AB 91): "I must consider that each matter would attract consideration after the pleas of guilty of at least three to four years imprisonment…I would consider that a term of non parole custody of at least two years for each offence would be appropriate, with some accumulation. " 42 As the Judge was sentencing the applicant for more than one offence, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality: Pearce at [45]. In assessing the objective seriousness of each offence, the amount of money that the applicant dishonestly obtained was a significant matter as was the period of time over which the offence was committed: R v Hawkins (1989) 45 A Crim R 430 at 435. The same fraud had been used to commit each of the offences and there were no other distinguishing features. The applicant's offending in charge 2 was less serious than the offending in the other charges and the same head sentence cannot be justified. I reject the Crown's argument. 43 In my respectful opinion, the Judge erred in not considering an appropriate sentence for charge 2 and I would uphold this ground of appeal.

[45]

Ground 6: The sentence is manifestly excessive. 50 The applicant contended that the overall sentence of 6 years with a non-parole period of 4 years is excessive. It was submitted that whilst his prior record warranted greater application of specific and general deterrence a head sentence of 6 years in view of the total monetary value of the fraud was unprecedented. The Crown argued that the offending was premeditated, deliberate and repetitive over a course of 10 years and the total amount of the money obtained was considerable. 51 Counsel provided the Court with comparative cases dealing with sentences for social security fraud and with sentencing statistics from the Judicial Commission of New South Wales. A review of these cases indicates for the amount of money involved and the unsophisticated method by which the offences were committed, the overall head sentence imposed was significantly above the sentencing pattern. 52 I emphasise, however, to establish this ground of appeal, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357. Whilst prior decisions and statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence: Markarian at [27]. 53 The Judge correctly emphasised the seriousness of offences of frauds on the revenue of the Commonwealth and that, the gravity of the applicant's offending was increased, by being based on "a blatant attempt at personal enrichment". The applicant had shown limited remorse and his prior record of dishonesty warranted more weight to be given to considerations of personal deterrence and the protection of the community. His Honour appropriately identified general deterrence as being an important element of sentencing for an offence of this nature. Notwithstanding these important considerations, this was a fraud with no sophistication and little planning. No breach of trust was involved, nor did the amount of money dishonestly obtained warrant such a long sentence. In my respectful opinion, whilst a significant term of imprisonment was required the sentence imposed was outside the legitimate exercise of his Honour's sentencing discretion and was manifestly excessive. I would uphold this ground of appeal.

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