File No : PE 45565 of 2008, PE 53175 of 2007, PE 53176 of 2007, PE 53177 of 2007, PE 53178 of 2007

Criminal law and procedure - Social security fraud - Sentence of imprisonment - Dependent children with special needs - Whether a need to show exceptional circumstances

1 On 25 July 2008 the appellant pleaded guilty to seven charges of social security fraud involving $21,884.06 following which she was sentenced to a global head sentence of 10 months' imprisonment, to be released after serving 4 months upon entering into a recognisance.

2 On 15 August 2008 she lodged an application for leave to appeal against the sentence together with an application for bail pending the appeal. In the application for bail, the appellant had lodged detailed submissions for appeal. I directed that the matter be listed on 22 August 2008 for an expeditious hearing of the application for leave to appeal and the appeal. I am indebted to counsel for the respondent who, at short notice, prepared detailed written and gave oral submissions in response.

3 At the conclusion of the hearing, I remanded the appellant on bail pending the decision.

4 The appellant pleaded guilty to seven charges of obtaining a financial advantage for herself from Centrelink in respect of parenting payments contrary to the Criminal Code (Cth) s 135.2(1).

5 The charges related to an overpayment of parenting payments (single) in the sum of $21,884.06 incurred because the appellant failed to declare she was employed and in receipt of income, and that she had been paid workers compensation. The appellant had been in receipt of social security payments since 3 November 1983, and was in receipt of parenting payments (single) which are designed to provide income support for single persons who are primary carers of children.

6 It was accepted that the charges represented a continuous course of conduct resulting from the appellant's failure to advise Centrelink when she commenced employment with an ethnic aged care centre on 4 February 2002. She was later employed at St Michaels as well. During the second employment she claimed workers compensation payments which were not declared to Centrelink.

7 Counsel for the appellant, who was also counsel at the sentencing, presented a full plea in mitigation. He commenced by acknowledging that the amount of money 'puts it into the area where your Honour can reach the view that imprisonment has been reached and there are ample areas where people have been sent to gaol for amounts as this'.

8 The essence of counsel's submission thereafter was that any sentence should be suspended. Suspension of sentence is not available in respect of Commonwealth offences. However, the magistrate had a discretion to make an order for release on recognisance at any time after the sentence began.

9 Counsel advised the court that the applicant was 48 years of age and had five children ranging from 15 to 23 years. Her 17-year-old child has epilepsy and attention deficient hyperactivity disorder and is under the care of Dr Silberstein. The 15-year-old child has cerebral palsy. Counsel detailed some issues arising from the children's disability and the role of the appellant in managing those needs. Counsel's submission was summarised that if the appellant was to serve a term of imprisonment it would cause undue hardship on the two children who suffer afflictions. Counsel advised that the money defrauded from Centrelink was spent on living and surviving, not on matters of extravagance. The money had been repaid by time of sentence.

10 The magistrate also had the benefit of a pre-sentence report and other details about the children.

11 MM was born on 13 June 1991. Dr Silberstein confirms that he is being treated for primary generalised epilepsy, ADHD and encopresis.

12 Dr Joseph Di Camillo wrote that the appellant is the primary carer and 'they (the children) depend on her for everything to the point of getting dressed to the administering of medication. AM, with cerebral palsy, is due for an operation on his arm very soon to do with the cerebral palsy condition because he can not dress or put his own shoes on'.

13 A friend of the appellant, Ms Ruggiero, advised the court by letter that the children are heavily dependent on the appellant administering their medication and providing basic needs.

14 Another friend, Ms Bonnanella, advised that MM has seizures and that the appellant had saved his life through CPR.

15 The magistrate correctly identified the matters under the Crimes Act 1914 (Cth) s 16A which had to be taken into account, noting that they are not simply a checklist. He drew attention to Laxton v Justice (1985) 38 SASR 376 concerning the principles relevant to sentencing of offenders for social security fraud and to a series of Western Australian cases including Nunn v Kinnon (1988) 4 WAR 459; R v Rossi (1988) 4 WAR 463; Ralph v Nawrojee [2003] WASCA 5; Esplin v Raffin [2008] WASC 42.

16 He noted the repayment of the money which he regarded as a significant mitigatory matter. He considered the pleas of guilty were belated but nevertheless facilitated the course of justice, avoided a trial and reflected an acceptance of criminal responsibility by the accused, although they did not carry with them significant contrition. Nevertheless, he took them into account as mitigatory. He noted the appellant's medical background and her personal circumstances. He took into account that on the whole she was a person of good character and considered that was a mitigatory factor.

17 After carefully weighing the alternatives to imprisonment and noting that it should not be imposed unless no other sentence is appropriate, he continued:

In my view, the offences are very serious. There are five offences, they were committed over a period of time, and, although, as the prosecutor fairly concedes, there was a gap in that period of time, when one looks at the beginning point and the end point, but none the less, it was over a reasonably substantial period of time that this offending continued, and it is also significant, in my judgment, that there was a substantial loss. (ts 23).

18 Finally, he noted the circumstances relating to the appellant's children and their disabilities, special needs, and their need for care from the appellant, before concluding:

I am of the view that the seriousness of the offending is such that it would not be appropriate for me to take a sentencing option that effectively has the operation of suspending the term of imprisonment or releasing the accused without serving any time in custody. (ts 24)

19 Specifically in relation to the children he said:

In my view, I will quickly add that the circumstances relating to the children would be - will involve hardship (indistinct) this accused, in my view, has to serve a term of imprisonment but the hardship is such as that, in my view, it is of not such exceptionality, it is not - I am not satisfied that I should be deflected away from my duty to ensure that and appropriate punishment is imposed, as to also reflect the need for general deterrence in the sentencing of Social Security fraud of this type, these circumstances and nature. (ts 24)

20 The appeal turns on a narrow issue in relation to the children's needs. Were exceptional circumstances necessary before an immediate release order could be made? The appellant submitted that no such test is found in the Crimes Act s 16A.

21 If exceptional circumstances are necessary, the appellant submitted that they were present.

22 Although the appellant takes no issue with the length of the head sentence, the submission is that insufficient weight was given to the two special needs children and whether, when there is no-one who can properly care for them, there are special circumstances calling for mercy and leniency.

23 The common law principle as to the effect of hardship on others in sentencing is set out in The State of WA v Skaines [2006] WASCA 160 per Roberts-Smith JA (McLure and Buss JAA agreeing):

The general principle which must be accepted, is that a sentencing Court should have no regard to the impact which a sentence of imprisonment will have upon members of the prisoner's family, although this is not an absolute principle and may be departed from 'in extreme cases'. [43]

24 The appellant points out that the Crimes Act 1914 (Cth) s 16A(2)(p) requires a court to have regard to 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependents'. It is submitted that the statute does not require 'exceptional' or 'extreme' circumstances to be demonstrated. In support the appellant cites comments by Wallwork AJ in Michael v The Queen [2004] WASCA 4. Wallwork AJ quoted s 16A(2)(p) before saying:

In my view, that subsection of the Act puts into statutory form the modern thinking on punishment and it should be applied with respect to sentencing for State offences. The section makes no mention of 'exceptional' circumstances. [57]

25 The comments of Wallwork AJ were in dissent and obiter dicta particularly as what was in issue was a state not commonwealth offence. The comments are out of step with binding authority to the effect that the Crimes Act s 16A(2)(p) reflects common law principles: R v Berlinski [2005] SASC 316 at [30]; Carmody (1998) 100 A Crim R 41; Sinclair (1990) 51 A Crim R 418, Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23. I hold that the principle enunciated in Skaines has application to the Crimes Act s 16A(2)(p).

26 The difficulty for the appellant is that the magistrate expressly did take account of the circumstances of the children. He was very alive to their special needs when setting both the head sentence and the term before release. His discretionary decision must stand unless there is error: Lowndes v The Queen [1999] HCA 29, (1999) 195 CLR 665 at 671. The magistrate's conclusion that the hardship is not of such exceptionality as to take away the need for just and appropriate punishment reflects no error of principle. Nor, on the information put before him, did he err in fact in finding that the needs of the children did not amount to exceptional circumstances. Perhaps in social security fraud offences more than other offences offenders will have dependent children who will suffer disadvantage at the imprisonment of their parent.

27 Under the Criminal Appeals Act 2004 (WA) s 14 the court may set aside or vary the decision of the court of summary jurisdiction and the sentence imposed, and may have regard to any relevant matter that has occurred between when the offender was convicted and the appeal was heard.

28 In support of the bail application, the appellant filed an affidavit from the appellant's 21-year-old daughter who deposes that she has taken on responsibility for her brothers MM and AM. She has recently obtained a full-time job and her hours are varied but she is often required to commence work at 6.30 am which requires her to leave the house before 6 am. She is not there to assist her brother in getting ready for school and monitoring his medication. In the case of MM, who has a problem soiling himself, previously her mother would go to the school, pick him up and deal with the problem, but she is not in a position to do that. He has started to miss school because he is not always ready because he is not always organised to get himself ready for school and is self-conscious about the problem of soiling himself.

29 Because MM is upset about his mother not being there, this has resulted in unruly behaviour where the house is a mess when she returns from work. She must clean the house, cook and wash while studying for a Diploma in Children's Services.

30 In relation to AM, who has cerebral palsy, the major effect is that his right arm is paralysed. This necessitates him having to be assisted in dressing himself in the morning. He cannot tie his own shoelaces when she is not there. He too lacks assistance and has been missing school with his brother. His requirements are far greater than simply helping him get dressed in the morning. He needs to be assisted with meals and taken to school.

31 She deposes that her brothers require full-time attention, something she is not able to give with her employment and study.

32 This material was not of course before the magistrate but does disclose a more serious set of consequences following the appellant's incarceration than must have been envisaged by the magistrate. The probable effect of the appellant's incarceration on the children is very deleterious to a degree which can be described as exceptional.

33 I have reached the conclusion that the lack of the full-time care provided by the appellant to MM and AM, as illustrated by what has occurred since the sentence, although unknown to the magistrate, places this matter in a category identified in Skaines that allows departure from the normal principle. Although no error has been shown in the magistrate's decision in matters which have become known since sentencing, the sentence imposed has become unjust.

34 The appellant has spent about one month in custody. I propose to vary the sentence imposed by the magistrate as follows:

1. Charge Nos 45565/08, 53175/07 and 53176/07 - a sentence of 8 months' imprisonment.
2. Charge Nos 53177/07 and 53178/07 - a sentence of 2 months' imprisonment to be served cumulatively on the sentence of 8 months.
3. The appellant is to be released forthwith upon her giving security in her own recognisance in the sum of $1,000 to be of good behaviour for 18 months.