Crimes Act 1914 (Cth), Part 1B, s 16A, s 19AB(1), s 19AB(3), s 19AB(4)

Social Security Act 1991 (Cth), s 1231

Respondent : Commonwealth Director of Public Prosecutions

Attorney-General v Kortum, unreported; CCA SCt of Vic; 23 September 1977

Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Allpass (1993) 72 A Crim R 561

R v Cameron and Simounds, unreported; CCA SCt of SA; Library No S4051; 19 July 1993

R v Doherty, unreported; CCA SCt of WA; Library No 970518; 14 October 1997

R v Hickey, unreported; CCA SCt of WA; Library No 950587; 3 November 1995

R v Oancea (1990) 51 A Crim R 141

R v Paunovic (1990) 51 A Crim R 174

Ralph v Nawrojee [2003] WASCA 5

1 ANDERSON J: This is an application for leave to appeal against a sentence passed in the District Court (Groves DCJ) on 31 July 2002 in a case involving social security fraud. The applicant had been presented to that Court on an indictment presented by the Commonwealth Director of Public Prosecutions charging the applicant that:

"Between the 10th day of July 1997 and the 6th day of July 2000 at Corrimal in the State of New South Wales and at Gosnells in the State of Western Australia Andrew Phillip Norton defrauded the Commonwealth, in that he continuously and deceitfully represented to Centrelink that he had the care and control of a child, Erich Dumont, and thereby obtained payments of Sole Parent Pension, Parenting Payments Single, Family Allowance, Family Tax Payment and Double Orphans Pension, contrary to s 29D of the Crimes Act 1914."

2 At the conclusion of argument I joined in the decision to refuse the application and my reasons are as follows.

3 In 1996 the applicant lived at Corrimal in New South Wales with a woman by the name of Sherry Thompson and her child Erich Dumont who was then aged about 6 and their own child Aiden, an infant who had been born on 9 May 1995. Both the applicant and Ms Thompson were drug addicts, their drug of preference being heroin. Ms Thompson's health began to fail and in October 1996 the child Erich went to live with his biological father in Queensland. The applicant and Ms Thompson and their son Aiden remained together until Ms Thompson died in late June 1997. Twelve days later the applicant lodged claim forms with the government agency Centrelink making a claim for social security benefits known as Sole Parent Pension, Family Payment and Family Tax Payment. On the Sole Parent Pension claim form the applicant claimed that he had both Erich and Aiden under his care stating that he was Erich's guardian. At the time that form was filled in Erich was living with his natural father in Queensland, as he had been for more than nine months. On the claim form for the other benefits the applicant also listed Erich as living with him and stated that he was Erich's guardian. These claim forms were accepted by Centrelink and fortnightly payments of social securities commenced.

4 Shortly after lodging these claims the applicant moved to Western Australia and commenced to live at Gosnells. He filled out a change of address form in which he was required to again list child dependents and he filled in this form falsely to the effect that both Erich and Aiden were in his care. On 21 August 1997 the applicant lodged a claim for an Orphans Pension at the Gosnells office of Centrelink, with reference to the child Erich. On that form he described his relationship to Erich as step-father and filled in the form falsely to the effect that Erich was living with him, stating that he had done so for approximately four years. He also falsely stated that he did not know the whereabouts of Erich's father.

5 On 26 June 1998 the applicant lodged a fresh claim for a Parenting Payment in which he falsely listed Erich as being in his care and described his relationship to Erich as step-father. He falsely claimed to have the exclusive care and legal responsibility for Erich. From time to time thereafter the applicant lodged change of address forms with Centrelink in each of which he falsely confirmed that Erich was living with him and was under his exclusive care.

6 Individuals in receipt of Parenting Payments as sole parents have their circumstances reviewed every 12 weeks and are required to complete and lodge a review questionnaire. In all of the review forms the applicant falsely listed both Erich and Aiden as dependents in his exclusive care.

7 On 19 June 2000 a Centrelink office in Queensland conducted a routine review of Erich's payment record. Discrepancies were noted and investigations revealed that social security payments were being paid in respect of Erich to Erich's natural father as well as to the applicant. As a result of further investigation it was established that the applicant had received a total of $34,332.95 to which he was not entitled. The applicant declined to be interviewed and the charge the subject of the indictment was preferred. The applicant did not plead guilty at the earliest opportunity. The applicant has a substantial record of convictions for dishonesty and other offences including assault, both in New South Wales and in Western Australia.

8 The maximum penalty for the offence in question is 10 years' imprisonment. After hearing lengthy submissions from counsel for the applicant in mitigation of penalty Groves DCJ delivered comprehensive sentencing remarks in which all matters of mitigation were carefully considered, the most important of which was the likely effect of a lengthy prison term on the applicant's son Aiden then of the age of 7. It was not in dispute that the applicant was Aiden's sole carer and that there was a strong bond between father and son. With respect to this aspect of the case Groves DCJ said:

"The main factor raised in mitigation on your behalf is the importance of your relationship with your natural son. He is now seven years of age and, I am told, is currently in the care of your father in New South Wales. I am told that your father is not in good health, your mother resides overseas, and I am told that there is no other family person who could care for the child. There is the prospect that he will have to go into care whilst you are serving any sentence of imprisonment. I am told that there has developed a very close relationship between you and your child. Obviously imprisonment for you will involve penalising an innocent child. Whilst that situation may be regrettable, the necessity of protecting the integrity of the social security system by deterrent penalties must take priority over personal considerations."

9 His Honour arrived at a head sentence of 3 years and 6 months' imprisonment. He was required to fix a non-parole period (Crimes Act 1914 (Cth) s 19AB(1)) and as to this he simply said:

"... and I will fix a minimum term of 21 months' imprisonment."

10 It is this aspect of his Honour's disposition of the matter to which in the end the applicant's appeal is directed. The application for leave to appeal against that head sentence of 3 years and 6 months was abandoned by counsel for the applicant during the course of argument before us.

11 Mr Monisse, who appeared for the applicant, submitted that the fixing of a minimum term is a distinct exercise of sentencing discretion which is not properly exercised when a sentencing Judge merely states the minimum term without giving reasons for fixing that minimum term. Mr Monisse went so far as to submit that a sentencing Judge must give separate and distinct reasons for deciding on the minimum term which he or she fixes.

12 I think that this submission involves a misconception. A Judge who passes a sentence with a non-parole period passes only one sentence not two: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629 - 630. The purpose of sentencing remarks is to explain why that single sentence has been imposed. Most if not all of the facts and circumstances relevant to the fixing of a head sentence will be relevant to the fixing of the minimum time which the prisoner must remain in custody. The question is whether sufficient reasons have been given for the single sentence. The sentencing

reasons stand as the reasons for both the head sentence and the non-parole period.

13 It is of course different when the sentencing Judge decides not to fix a non-parole period. He may decline to do so but if he does he is required by statute to state his or her reasons for so deciding: Crimes Act s 19AB(3), s 19AB(4).

14 In this case it is quite clear that Groves DCJ gave consideration to everything that could possibly be said in favour of the applicant in arriving at what he considered to be the appropriate punishment. It is clear that he considered that in all the circumstances of the case, including all matters of mitigation, justice required that the applicant should serve at least half his sentence in custody before consideration may be given to his release into the community. Because I was not persuaded that there was a failure properly to exercise the sentencing discretion or that the sentence which was imposed stood outside the sound exercise of sentencing discretion I joined in the decision to refuse the application for leave to appeal.

15 PARKER J: When this application was argued on 20 March 2003 the decision of the Court was to refuse leave to appeal. Reasons for decision were to be published at a latter date.

16 The reasons now published by Anderson J record generally the matters which led me to join in the decision to refuse leave to appeal and I do not wish to add anything further.

17 MCKECHNIE J: At the conclusion of the hearing of this application for leave to appeal, the Court unanimously refused leave and indicated that reasons would be published later. These are my reasons for joining in that decision.

18 The applicant sought leave to appeal against a sentence of 3-1/2 years imprisonment with a non-parole period of 21 months imposed on him by Groves DCJ on 15 July 2002 for defrauding the Commonwealth of $34,332.95.

"The sentence imposed was manifestly excessive in all the circumstances bearing in mind the Applicant's plea of guilty and matters personal to him."

20 As matters proceeded during the course of argument, it became clear that counsel was not pursuing this ground.

21 In my judgment the head sentence was within the range of sentences commonly imposed and the Judge made no error. Deterrence is a significant aspect for sentences of Social Security fraud: Nunn v Kinnon (1988) 4 WAR 459; R v Rossi & Bowman (1988) 4 WAR 463 at 467; Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997; R v Mitchell, unreported; CCA SCt of WA; Library No 980618; 28 October 1998. The head sentence is within the range of a sound sentencing discretion.

22 The second ground of appeal, added by leave at the hearing, was pursued:

"The learned sentencing judge failed to exercise his discretion when fixing the non-parole period."

23 The facts were extensively set out by the sentencing Judge.

24 In brief, the applicant claimed to Centrelink for a three-year period that he had the care and control of a child when the child was never living with him, but was in fact living with his natural father in Queensland. The offences began on 10 July 1996. The applicant thereafter repeatedly lodged claims forms with Centrelink until 2000 when a routine review in Queensland uncovered the double payments.

25 The sentencing Judge noted the applicant's antecedents as set out in a pre-sentence report and expanded in counsel's submissions. Those antecedents included offences relating to dishonesty.

26 The Judge was aware of the relationship between the applicant and his natural son, who was seven at the time of sentence, and that imprisonment would involve penalising an innocent child.

27 The sentencing Judge found it difficult to avoid the conclusion that the applicant was motivated by greed in continuing the offending and regarded general deterrence as paramount when considering an appropriate sentence.

28 The Judge took into account the plea of guilty, applying a discount of 12.5 per cent to the sentence he would otherwise have imposed, noting that this was not a fast-track plea of guilty.

29 The Judge was required to fix a non-parole period in respect of the sentence of 3-1/2 years: Crimes Act s 19AB(1)(b).

30 The Judge had a discretion to set a non-parole period provided the non-parole period did not exceed two-thirds of the head sentence: Crimes Act, s 19AF; s 19AA.

31 The Judge did not articulate reasons why he set the minimum term at 50 per cent. Counsel for the applicant argues that in failing to articulate reasons, he fell into appellable error. I am unable to accept this submission in the circumstances of this case where the Judge had carefully articulated both the circumstances aggravating the offence and the particular matters of mitigation, especially the impact of imprisonment on the relationship between the applicant and his young child.

32 The Judge took all these matters into account in deciding the appropriate sentence which necessarily includes both the head sentence and the non-parole period.

33 A minimum term is to provide for rehabilitation through conditional freedom once the offender has served the minimum time a Judge determines justice requires that he must serve, having regard to all the circumstances of his offence: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. The consideration of general deterrence is a factor to be taken into account in fixing a non-parole period: R v Sinclair (1990) 51 A Crim R 418 per Malcolm CJ (Kennedy and Pidgeon JJ concurring) at 432.

34 I do not consider the non-parole period of 21 months to be in error in the circumstances of this case.

35 Finally, I make note that in R v Rice, unreported; CCA SCt of WA; Library No 950444; 3 August 1995, Malcolm CJ (Franklyn and Walsh JJ concurring) in dealing with a case of Social Security fraud said at 9:

"In my opinion, an appropriate non-parole period in such a case as this might normally be in the vicinity of one-half of the sentence depending on the individual circumstances. The discretion must be exercised individually in each case (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513."

36 This observation provides some further support for a non-parole period of 50 per cent. However, I do not rest my judgment on this point. Rather I consider that, in the circumstances, no error has been demonstrated in the setting of a non-parole period of 21 months.

37 These are the reasons why I joined in the refusal of leave to appeal.