McGuiness v R

The Judge's reasons 30 The Judge noted that the total sum involved was $55,132.98 and that a significant repayment in the amount of $42,800.00 had been made. His Honour next referred to the circumstance that Mr McGuiness had been separately charged and dealt with in the Local Court. He said this: "It is said that the principles of parity should apply, I do not agree they should apply but I think it is important that I should bear in mind what happened to the husband." (ROS AB 80.3-5) 31 His Honour commented that the applicant had entered pleas to each of the seven counts and observed that "it is very important to bear that in mind when considering Ms Cusack's [the applicant's counsel] submission that, in reality, she submits, the husband's conduct was more criminal than hers." (ROS AB 81.4) 32 His Honour noted the submission that it was open to him to find that there were exceptional circumstances which justified imposing a sentence other than fulltime custody. He noted in this respect that the monies had been obtained to assist the applicant in caring for her family and that there was no indication that it had been spent on inappropriate luxuries. His Honour went on to say this: "So having said that I then have to come, first of all, to the principles set out in 16A of the Crimes Act. Subsection (2) sets out a whole list of matters, (a) to (p), to which the Court must pay attention. The various factors to which I have already referred are all factors coming from within one or other of those lettered sub-sections. I have already referred to the preponderance of authority, illustrations of which are contained in exhibit A, about what the Court of Criminal Appeal has frequently said about offences relating to this type of offence, and therefore, when I come to consider 17A, this provides: 'A court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.' As the Court of Criminal Appeal has repeatedly said, offences of this nature, carried out over a long period of time, require immediate custodial sentences. It is then for me, as soon as may be, to identify what form that must take, and then allocate particular sentences to the various counts." (ROS AB 82.8-83.4) 33 The Judge proceeded (after referring to the principles explained by the High Court in Pearce v R (1998) 194 CLR 610) to pronounce the sentences that are set out above.

The grounds of appeal 34 The applicant filed three grounds in support of the application: "1. The Sentencing Judge erred in not applying the principles of parity. 2. If parity does not apply, the sentencing Judge erred in not applying the principles of consistency to ensure there is no justifiable sense of injustice when one compares the appellant's sentence to that of her husband's. 3. The sentence imposed on the appellant was manifestly excessive." 35 In supplementary written submissions filed on the applicant's behalf, directed to the third ground Mr Bellanto QC, who with Ms Ghabrial appeared on the applicant's behalf, complained that the Judge had made no assessment and accordingly made no finding as to whether there existed exceptional circumstances that would admit of a sentence other than fulltime custody. This submission was developed in the course of oral argument. Mr Bellanto was granted leave to amend his grounds of appeal to rely upon a fourth ground of appeal: "His Honour erred in the exercise of his discretion in failing to consider that it was open to him to impose a sentence other than one of immediate full-time custody." 36 Ground 1 complained that the Judge failed to apply principles of parity. Mr Bellanto acknowledged that this ground was difficult to make good, since the applicant had been dealt with on indictment for offences carrying substantially higher maximum penalties than the charges of which her husband had been convicted. In his submission, it remained appropriate to have regard to the common factual matrix and an assessment of the respective culpability of the two. This submission was advanced in support of grounds one and two. His contention was that Mr McGuiness' offending was of a graver nature than that of the applicant. It had occurred over a longer period of time and had involved the repeated submission of statements containing a false claim. Mr McGuiness had not admitted his guilt in respect of the majority of the charges brought against him and his sentence was imposed after trial. Mr Bellanto noted that while the sum involved in Mr McGuiness' offending was $26,237.76, he had repaid a lesser amount proportionately than had the applicant. 37 Mr Bellanto relied on the judgment of this Court in R v Kerr [2003] NSWCCA 234 per Miles AJ (with whose judgment Beazley JA and Adams J concurred) at [19]: "It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice." 38 In R v Formosa [2005] NSWCCA 363 Simpson J (with whom McClellan CJ at CL and Hoeben J concurred) observed that Kerr is capable of being read as extending the principle of parity to apply in cases where co-offenders are charged with different offences. Her Honour expressed the need for caution before adopting any such principle. She went on to say this: "[50] Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this Court has supervisory jurisdiction, even by the backdoor method of supervising sentencing." 39 The cautionary note sounded by Simpson J has been endorsed more recently in Spinks v R [2007] NSWCCA 52 at [28]-[31] and Shaopang Yin v R [2007] NSWCCA 350 at [23]-[24]. 40 The facts giving rise to the prosecution of the applicant and her husband had common features. The reason for the exercise of the prosecutorial discretion to charge Mr McGuiness with summary offences punishable with a maximum sentence of 12 months' imprisonment and the applicant with indictable offences, which in some instances were punishable by a maximum of five years' imprisonment, is unexplained. It may be that the sums involved in the offences charged against the applicant were relevant to the determination. It remains that the Judge was sentencing the applicant for offences that in law were of a significantly more serious character than those with which Mr McGuiness was charged. The three counts charged under the Criminal Code (having the five year maximum penalty) involved, in all, a sum of $34,057.84 which was in excess of the total sum involved in all of the 13 summary offences of which Mr McGuiness was convicted. We were unpersuaded that the Judge erred in not applying principles of parity. 41 Ground 2 was couched in language that echoes that of Mason J in Lowe v R (1984) 154 CLR 606 at 612, but advances a challenge on a basis that is outside the principle of parity. This was not a case which raised consideration of any broader principle of consistency in sentencing, whether derived from the statements in Kerr or otherwise, since there existed the distinction between cases brought against the applicant and her husband, to which we have referred. 42 On the hearing of the application Mr Bellanto did not press submissions in support of ground 3, which challenged the sentences as being manifestly excessive. He acknowledged that in light of the pattern of sentencing for social security fraud, a sentence of two years with a recognizance release order at the expiration of 10 months did not exceed the bounds of discretion. 43 Mr Bellanto's principal challenge was that the Judge approached the sentencing of the applicant upon the basis that he was constrained to impose an "immediate custodial sentence". The Crown Prosecutor submitted that his Honour's remark needed to be seen in context and amounted to no more than a conclusion that this was not an exceptional case in which it would be appropriate to impose a sentence other than fulltime custody. The difficulty with this submission is that the Judge, in the course of his brief remarks, did not address the substantial body of evidence that was led in the applicant's case. 44 The circumstances in which persons, including those of prior good character, dealt with on indictment for social security fraud over a sustained period will avoid the imposition of a sentence of fulltime custody are rare. Nonetheless, the Judge had a discretion and it could not be said that this was a case in which there were no features requiring careful assessment of the submission that it was open to impose a sentence other than fulltime custody. The applicant's criminality was of a lesser order than that of those who defraud the revenue by the adoption of false identities or by other sophisticated schemes. She was a 60 year-old woman of previously unblemished character, who had made a positive contribution to the community, particularly in the support of her grandchildren. The monies that she obtained had been spent on necessities. She had a number of medical problems, which were such as to make the experience of imprisonment somewhat more burdensome for her than for other prisoners. 45 Reasonable minds may differ about whether these circumstances in combination were such as to admit of a penalty other than one of fulltime custody. The absence of any analysis of them pointed to the force of the complaint in ground 4. The Judge appears to have considered that he was constrained to impose an immediate custodial sentence. That is what his Honour said. To approach the matter in this way was an error. 46 It was necessary for this Court to consider for itself the exercise of the sentencing discretion. The Court received further evidence on this question. On 7 January 2008 the applicant, through the assistance of her eldest daughter, repaid the balance of the amount owing to the Agency. An updated medical report from the applicant's treating doctor based on her review of the applicant's Justice Health file suggests that the applicant has had an exacerbation of her osteoarthritis from about mid-February 2008. She has had similar exacerbations in the past. 47 In the Crown's submission, if the Judge erred in the respect identified in ground 4 or, alternatively, by failing to state reasons sufficient to demonstrate that he had addressed the matters put on the applicant's behalf and concluded, rightly, that no sentence other than fulltime imprisonment was appropriate, it was not an error that would lead this Court to intervene. This was because, it was said, no lesser sentence was warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW). 48 Mr Bellanto referred us to the decisions in R v Blaire (unreported), Court of Criminal Appeal, 20 November 1987 and R v Winchester (1992) 58 A Crim R 345. In each of those cases the offender made immediate admissions of guilt and had been permitted by the Agency over a substantial period to continue making regular repayments before action had been taken to prosecute her. In Winchester the delay was two years and eight months. In that case Hunt CJ at CL said this (at 349): "Blaire's Case is one of the many decisions of this Court that those who defraud the Department of Social Security by lodging false claims must expect a significant measure of criminal justice to be meted out to them when their guilt is discovered. But Blaire's case also said this. Where an offender of the present type makes immediate admissions of guilt, but is permitted by the Department to continue for a substantial period to make regular repayments of the amount involved in the offence before any action is taken to prosecute the offence, what may have been required by way of punishment if the prosecution had been instituted speedily is no longer necessarily required when the prosecution is, without any valid explanation, brought on tardily." 49 There was no explanation for the delay in this case, which was of about one year. The Crown Prosecutor submitted that the Court should take into account the fact that delays are commonly experienced in decision-making within a large bureaucracy. 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. In this case the delay is not of the order of that with which Winchester or Blaire were concerned. Nonetheless, in my opinion, it was a factor to be taken into account. The applicant, who at 60 years of age had led a conventional life in a country town had suffered the shame associated with disclosure of her wrongdoing. She gave evidence of the upset that this had caused. After being permitted to continue her life, making repayments over a period of one year, the decision to prosecute her must have come as a considerable blow. 50 The matters that the Court took into account in rejecting the Crown Prosecutor's submission (that no lesser sentence was warranted in law) in the unusual circumstances of this case may be summarised as follows. These were offences of omission lacking in any element of sophistication. The whole of the monies had been repaid. There was significant delay in commencing the prosecution. The offences came about in a context of need in which the applicant had extended family responsibilities. The applicant's age, health difficulties and her otherwise good character were matters that in combination with the factors to which we have referred justified a marked degree of leniency in the individual sentences, and in the structure of them, including in the proportion between the sentence and the period of custody before release on recognizance. 51 For this reason the orders of the Court were:

Quash the sentences imposed in the District Court on counts 1, 6 and 7 and confirm the sentences imposed on counts 2, 3, 4 and 5;

On count 1 sentenced to six months' imprisonment to commence on 23 November 2007 and to expire on 22 May 2008;

Confirm the sentences of three months dating from 23 November 2007 on counts 2, 3, 4 and 5. Such sentences will expire on 22 February 2008;

On count 6 the applicant is sentenced to six months' imprisonment to date from 23 February 2008. That sentence will expire on 22 August 2008;

On count 7 the applicant is sentenced to nine months' imprisonment to date from 23 February 2008. That sentence will expire on 22 November 2008. 8. Direct the applicant's release forthwith on her entering into a recognizance self in the sum of $50.00 to be of good behaviour for the balance of the sentence until 22 November 2008. **********

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