Leighton v R

LEGISLATION CITED: Crimes Act (Cth) 1914 ss 16A(2)(m), 16A(2)(g), 19AB(1), 21B, 29D Criminal Code s 134.2 (1)

Blanco v R [1999] NSWCCA 121 Grenfell v R [2009] NSWCCA 162 Markarian v R (2005) 228 CLR 357 McGuiness v R [2008] NSWCCA 80 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Badanjak [2004] NSWCCA 395 R v BJW (2000) 112 A Crim R 1 R v Hawkins (1989) 45 A Crim R 430 R v Smith (1987) 27 A Crim R 315 R v Viana [2001] NSWCCA 171 R v Winchester (1992) 58 A Crim R 345 Tyler v R; R v Chalmers [2007] NSWCCA 247

COUNSEL: Ms A Francis - Applicant Mr L Crowley - Crown

SOLICITORS: Legal Aid (NSW) - Applicant Commonwealth Director of Public Prosecutions - Crown

• 19 - IN THE COURT OF CRIMINAL APPEAL 2008/6005

SIMPSON J PRICE J HOWIE AJ

9 December 2010 LEIGHTON v R Judgment 1 SIMPSON J: I agree with Price J. 2 PRICE J: The applicant Desmond William Robert Leighton seeks leave to appeal against the sentences imposed in the District Court at Dubbo on 26 August 2009. He had adhered to his pleas of guilty made in the Local Court to the following court attendance notices:

Charge 1 : "Between about 18 April 1996 and 21 May 2001…at Sydney and elsewhere in New South Wales…defrauded the Commonwealth in that he obtained Disability Support Pension in the name Desmond William Robert Leighton whilst receiving Disability Support Pension in the name Desmond Robert Layton… [in breach of] Section 29D Crimes Act (Cth) 1914."

Charge 2 : "Between about 3 July 2001 and 23 April 2002…at Sydney and elsewhere in New South Wales…by a deception dishonestly obtained a financial advantage from a Commonwealth entity, namely the Commonwealth Services Delivery Agency, in that he obtained Age Pension in the name Desmond Robert Layton to which he was not entitled because he was not at least 65 years of age…[in breach of] Section 134.2(1) Criminal Code. "

Charge 3 : "Between about 7 May 2002 and 30 May 2006…at Sydney and elsewhere in New South Wales…by a deception dishonestly obtained a financial advantage from a Commonwealth entity, namely the Commonwealth Services Delivery Agency, in that he obtained Age Pension in the name Desmond Robert Layton whilst receiving Age Pension in the name of Desmond William Robert Leighton…[in breach of] Section 134.2(1) Criminal Code ." 3 The amount overpaid to the applicant between 18 April 1996 and 21 May 2001 was $49,553.33 (charge 1). The overpayment between 3 July 2001 and 23 April 2002 amounted to $9,646.66 (charge 2) whereas the overpayment between 7 May 2002 and 30 May 2006 was $49,883.48 (charge 3).

4 The applicant was sentenced on the first charge to imprisonment for 3 years to date from 26 August 2009 and to expire on 25 August 2012, with a non-parole period of 2 years to date from 26 August 2009 and to expire on 25 August 2011. For the second charge, a term of imprisonment was imposed of 3 years to date from 26 February 2011 and to expire on 25 February 2014, with a non-parole period of 2 years to date from 26 February 2011 and to expire on 25 February 2013. For the third charge, the defendant was sentenced to imprisonment for 3 years to date from 26 August 2012 and to expire on 25 August 2015, with a non-parole period of 1 year to date from 26 August 2012 and to expire on 25 August 2013. 5 As a result of partial accumulation and concurrence, the total overall sentence was 6 years commencing 26 August 2009 and expiring on 25 August 2015 with a non-parole period of 4 years expiring on 25 August 2013. A reparation order was made in the sum of $105,060.97 pursuant to s 21B Crimes Act 1914 (Cth). 6 The maximum penalty for an offence contrary to s 29D Crimes Act was imprisonment for 10 years and/or a fine of $100,000. The fine was increased to $110,000 for offences after 6 April 1997. 7 The maximum penalty for an offence contrary to s 134.2(1) Criminal Code is 10 years imprisonment and/or a fine of $66,000.

8 Before venturing further, I should mention that the Judge was obliged to impose a single non-parole period or to make a single recognisance release order as the aggregate term of the sentences exceeded 3 years imprisonment: s 19AB(1) Crimes Act. His Honour, however, initially identified the head sentence and an individual non-parole period for each offence but then referred to the applicant being "convicted on each count…[and] sentenced to an aggregate term of imprisonment of six years to date from today and expire on 25 August 2015 with a non parole period of 4 years to expire on 25 August 2013." 9 As the applicant does not complain that a single non-parole period was not fixed by the Judge, it is unnecessary to dwell at length on this subject, save to say that, in my respectful opinion, the fixing of individual non-parole periods for each sentence before identifying a single non-parole period is a sentencing practice which should be avoided for Federal offences. 10 The applicant now appeals against the sentences imposed on the following grounds:

"1. His Honour erred in his approach to the evidence and relevance of delay in prosecution.

His Honour erred in his approach to the evidence and relevance of the applicant's ill health.

His Honour erred in imposing the same penalty for the second offence as that in respect of the first and third offences.

His Honour erred in failing to consider a variation to the customary ratio.

His Honour erred in failing to have proper regard to the utilitarian value of the pleas of guilty.

Facts 11 The facts may be briefly stated. The applicant lodged a claim for a Disability Support Pension on 29 June 1994 in the name of Desmond Layton who was born on 28 June 1936. He had previously used this name in order to avoid income tax and to apply for a Newstart Allowance. The application was granted and the pension was paid into a bank account in the name of Layton. On 28 June 2001, the applicant was transferred from the Disability Support Pension to an Age Pension as, upon the information he had supplied to the Commonwealth Services Delivery Agency (the Agency), it was his 65th birthday. 12 On 12 February 1996, the applicant applied for and subsequently received a Disability Support Pension in the name of Desmond Leighton. These payments were paid into a bank account in the name of Leighton. Upon his 65th birthday, the applicant was transferred from the Disability Support Pension to an Age Pension. 13 The applicant operated two accounts in different banks for almost 10 years into which the pensions were paid and as a result of his fraud received a total amount of $109,083.47 to which he was not entitled. During this time, he had been sent numerous letters from the Agency reminding him of his obligation to inform the Agency of changes in his circumstances. 14 On 20 December 2005, Centrelink received a tip-off from a member of the public and an investigation commenced. A search warrant was executed in June 2006 and a debt was raised against the applicant. Repayments were made by the withholding of $50 each fortnight by Centrelink from his pension entitlements. The first court attendance notices were issued in July 2008 and the applicant entered pleas of guilty in the Local Court in August 2008.

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."

Ground 1 : His Honour erred in his approach to the evidence and relevance of delay in prosecution. 23 The applicant contended that the delay in the commencement of the prosecution, at the very least, warranted some variation in the "customary ratio" for the non-parole period as a proportion of the head sentence for Federal offences and the Judge erred in regarding delay as inconsequential. 24 The two-year delay between the execution of the search warrant and the commencement of the prosecution was unexplained. Inexplicable delay between the discovery of the crime and the prosecution of an offender may entitle him or her to an element of leniency: R v Winchester (1992) 58 A Crim R 345; McGuiness v R [2008] NSWCCA 80. As this Court (Bell JA, Simpson and Rothman JJ) explained in McGuiness at [49].

"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.

Ground 2: His Honour erred in his approach to the evidence and relevance of the applicant's ill health. 30 The focus of the applicant's complaint is the following passage in the Judge's remarks on sentence (AB 89 - 90): "So whilst any gaol will be of some hardship to any offender and will have some additional difficulties for an elderly offender suffering from the not unexpected health difficulties and degenerative processes that come with age, I cannot find that imprisonment will have such an increased burden or unique hardships on the offender, nor that there is a serious risk of an adverse effect.

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?

A. Well, if he - if the treatment were maintained and it could - and - it probably wouldn't have much impact apart from him being I guess locked away. " 34 Section 16A(2) Crimes Act states that "the court must take into account such of the following matters that are relevant and known to the court." Section 16A(2)(m) is included in the matters listed under s 16A(2) and provides as follows:

"…the character, antecedents, age, means and physical or mental condition of the person."

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?

A. He has very reduced mobility. His hips are limited. His knees are limited and in mobility, shoulders and hands and back.

Q. You indicated that he needs suitable accommodation?

A. No stairs and widened, widened doors and a disabled facility in the bathroom.

Q. Is it the case that he is not able to use usual bathroom facilities without provision of those facilities?

A. It would be - yes it would be difficult. … Q. What does he use at the moment to assist him in getting around the house?

A. Well he's got a walker and I know he has a cane as well, a walking stick.

Q. And is he dependent upon the walker and the walking stick to get around?

A. To get around yes. … Q. Just help. If I can ask you this. When you said to the Crown that you did not believe that going to gaol would have much of an impact upon Mr Leighton were you talking about his treatment in its current form continuing or were you taking into account issues such as his disability and his mobility in general?

A. Mainly I mean the treatment I guess but not the disability. I'm unaware that gaols have places where disabled people can stay.

Q. From your own observations of him over the last couple of years how would you describe his general mobility?

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.

Ground 4: His Honour erred in failing to consider a variation to the customary ratio. 44 The applicant's complaint is that the ratio of the non-parole period to the head sentence is 66.66 per cent whereas the customary ratio for Federal offences is 60 per cent to 66 per cent. 45 Determination of the appropriate non-parole period for offences in breach of the Commonwealth criminal law involves the exercise of judicial discretion. As was observed by Meagher JA with whom Wood CJ at CL and Studdert J agreed in R v Viana [2001] NSWCCA 171 at [3]: "The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 per cent. That is not to say that higher percentages cannot stand". 46 The seriousness of the offences, the applicant's lack of real prospects of rehabilitation, his extensive prior record of dishonesty offences and the need for specific and general deterrence were factors which justified a percentage which was slightly more than the norm. I am not persuaded that the non-parole period was beyond the legitimate exercise of the Judge's discretion. I would reject this ground of appeal.

Ground 5: His Honour erred in failing to have proper regard to the utilitarian value of the pleas of guilty 47 The applicant's complaint is founded on the contention that the Judge did not make it clear what discount attached to the utility of the pleas of guilty which were entered at the very first opportunity in the Local Court nor did he make reference to s 16A(2)(g) Crimes Act.

48 His Honour was required by s 16A(2)(g) Crimes Act to take into account that the applicant had pleaded guilty, which he clearly did in the passage quoted at [41] above, but the quantity of the reduction was not specified. As the Judge was sentencing for Federal offences he was not obliged to indicate a percentage discount for the utilitarian value of the plea. In Tyler v R; R v Chalmers [2007] NSWCCA 247 Simpson J (with whom Spigelman CJ and Harrison J agreed) said at [110-111] and [114]: "It is usual, in sentencing in NSW, to allow and specify with some precision the reduction in sentence given by reference to the "utilitarian value" of a plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That approach was frowned upon by the High Court in Cameron v The Queen [2002] HCA 6; 209 CLR 339. The majority there favoured an approach which permitted recognition of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing. " Cameron , however, has been held to have no application to sentencing in NSW: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300. That is because of the particular provisions concerning sentencing contained in the Crimes (Sentencing Procedure) Act 1999 . That Act does not apply to NSW judges sentencing under Commonwealth law, as was the case here. Accordingly, Cameron is applicable.

… In my opinion none of these arguments can be sustained. Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron . This specifically excludes reference to the utilitarian value of the plea." 49 I am also not persuaded that the Judge failed to consider that the plea was entered at an early stage. I would reject this ground of appeal.

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.

Re-sentence 54 In considering the question whether a lesser sentence is warranted, it is necessary to have regard to the applicant's affidavit and the letter from Justice Health which were tendered during the hearing of the appeal. 55 This material demonstrates that for a prisoner with disabilities, there may be a considerable difference between what is said to be the ability of Justice Health to provide treatment and the reality of treatment being provided. For instance, the applicant suffers from severe hearing loss in both ears with a resulting inability to hear the prison muster bell or public address system. The fitting of hearing aids requires transfer to Long Bay, but there is a lengthy waiting list. Furthermore, the applicant has difficulty eating as he only has a top set of teeth. He saw the dentist on 21 December 2009. Notwithstanding an approval for dentures, they have not been fitted. I do not propose to detail here all of the difficulties that the applicant has experienced whilst in custody and am mindful that the content of his affidavit was not the subject of cross-examination. It is sufficient to state that all of the material fortifies the conclusion that his ill health makes his time in custody more onerous. 56 Accordingly, I propose an overall sentence of 5 years with a single non-parole period of 3 years. The ratio of the non-parole period to the head sentence is 60 per cent.

57 I propose the following orders: 1. Application for leave is granted and the appeal allowed.

2. The sentences imposed in the District Court are quashed.

Charge 1: a term of imprisonment of 2 years 6 months that commenced on 26 August 2009 and expires on 25 February 2012.

Charge 2: a term of imprisonment of 1 year that commences on 26 May 2011 and expires on 25 May 2012.

Charge 3: a term of imprisonment of 2 years 6 months that commences on 26 February 2012 and expires on 25 August 2014.

58 I set a single non-parole period of 3 years that commenced on 26 August 2009 and expires on 25 August 2012. The applicant is eligible to be released on parole on 25 August 2012.

59 HOWIE AJ: I agree with Price J. **********

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