ORD v R

Court of Criminal Appeal (NSW)|2008-07-10|Before: McClellan CJ, James J, Fullerton J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Fullerton J at 60

DECISION: Leave to appeal granted. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - Commonwealth offences - social security fraud - female offender with young child - Mothers and Children's Programme within Department of Corrective Services - no assessment of suitability of offender for Programme

CASES CITED : R v Togias (2001) 127 A Crim R 23 R v Togias (2002) 132 A Crim R 573

PARTIES: ORD, Elizabeth The Crown

COUNSEL: G K Walsh (Applicant) G A Farmer (Crown)

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

IN THE COURT OF CRIMINAL APPEAL 2007/5197

McCLELLAN CJ at CL JAMES J FULLERTON J

FRIDAY 8 AUGUST 2008 ORD, Elizabeth v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Elizabeth Ord applied for leave to appeal against sentences imposed on her in the District Court on 26 October 2007 by her Honour Judge Murrell for three offences under s 29B (since repealed) of the Crimes Act 1914 Commonwealth of imposing upon the Commonwealth by an untrue representation with a view to obtaining money and six offences under s 135.1(5) of the Criminal Code Commonwealth of dishonestly causing a loss to the Commonwealth. The applicant had pleaded guilty to all of the offences. Broadly stated, the offences were for receiving social security benefits, being family tax payments or benefits or parenting payments single or partnered, on the untrue basis that she was the carer or shared in the care of twin girls born to her on 17 April 2000. 3 The sentencing judge imposed for four of the offences sentences of full-time imprisonment of either 12 months or 18 months, all commencing on 26 October 2007, in respect of which her Honour made a recognizance release order that the applicant be released after serving 10 months and two weeks, that is on 8 September 2008. Her Honour imposed fixed terms of imprisonment of three months or six months for the other offences, all commencing on the same date 26 October 2007. 4 Under s 29B of the Crimes Act the maximum penalty was imprisonment for two years and under s 135.1(5) of the Criminal Code the maximum penalty is imprisonment for five years.

Chronology 5 It is convenient to set out a chronology of some of the relevant facts. 6 The applicant was born in October 1978. In 1996 she gave birth to a son Jacob. In 1998 she entered into a relationship with a man Hayden Scott, who was not Jacob's father. In 1999 Scott seriously assaulted Jacob and Jacob was removed from the applicant's care by the Department of Childcare Services. 7 On 17 April 2000 the applicant gave birth in a hospital to twin daughters, of whom Scott was the father. The applicant remained in hospital until early May 2000. While she was in hospital, the applicant completed application forms for social security benefits on the basis that she would be the carer of her twin daughters. However, on 1 May 2000, before she was discharged from the hospital, her twin daughters were removed from her care by the Department of Childcare Services and placed in the care of their grandparents, on the grounds that the applicant's partner Scott had seriously assaulted her son Jacob and that both she and Scott were addicted to illicit drugs. The twins have remained in the care of their grandparents. 8 Over a period of more than four years between May 2000 and July 2004 the applicant received family tax payments or benefits and parenting payments, on the basis, which was false, that she was the carer or shared in the care of her twin daughters. The total amount received was about $75,000 of which about $5,000 was subsequently repaid, leaving a net sum of just under $70,000. 9 The applicant's offending conduct was discovered on 9 August 2004 and no further payments were made to her. 10 In 2004 the applicant's partner Scott was sentenced to a term of imprisonment and the relationship between Scott and the applicant ended. 11 The applicant formed a relationship with a man named Jason Button and a child James was born to them on 27 August 2005. 12 In January 2007 court attendances notices were issued against the applicant on behalf of the Commonwealth. On 7 August 2007 the applicant entered pleas of guilty to the charges. As already noted, the applicant was sentenced on 26 October 2007. 13 Affidavits deposing to facts subsequent to the sentencing of the applicant were admitted on the hearing of this application but only on the basis that they could be used if this Court were to re-sentence the applicant.

Remarks on Sentence 14 In her remarks on sentence her Honour found that the offences were objectively "quite serious", having regard to the amount of money received and the period over which the offending conduct had occurred. Her Honour found, in favour of the applicant, that the original claim had been made while the applicant was still in the hospital and would have expected that the twins would remain in her care. However, over the next few years the applicant had signed a number of forms in which she asserted that the twins resided with her and were dependant on her. Her Honour noted that the applicant's explanation for her conduct was that, for most of the period of her offending, she had been living with Scott who was overbearing and demanding and both she and Scott required money to support their drug habits. 15 Her Honour observed that general deterrence is a very important consideration in sentencing for offences of social security fraud, because such offences are difficult to detect and it is important that perpetrators of such offences should be aware that, if discovered, they will most likely receive full-time custodial sentences. Her Honour said that, unless there are very special circumstances, a full-time custodial sentence should be imposed for social security fraud. On the hearing of this application counsel for the applicant accepted that this was a correct statement of sentencing principle. 16 Her Honour then proceeded in her remarks on sentence to make a number of findings about some of the matters she was obliged to have regard to under s 16A(2) of the Crimes Act. Her Honour found that the applicant had entered pleas of guilty which had facilitated the course of justice, the applicant was remorseful and there were reasonable prospects that the applicant would not re-offend. 17 The applicant had a criminal history, some of the offences having been committed while she was on some form of conditional liberty. However, her Honour found that the applicant's criminal offending had been associated with her use of drugs and her relationship with Scott. The applicant had been a user of cannabis from an early age but Scott had introduced her to amphetamine and heroin. Scott had physically and mentally abused the applicant during their relationship. 18 Her Honour found that, after her relationship with Scott had ended, the applicant's use of drugs had dramatically diminished, and by the time of being sentenced the applicant was drug-free, except that she occasionally used cannabis. 19 Her Honour then referred to the applicant's son James and to the delay which had occurred in the bringing of criminal proceedings against the applicant. I will refer to these parts of her Honour's remarks in some detail in dealing with the grounds of appeal against sentence.

Grounds of appeal 20 The grounds of appeal against sentence which were pressed at the hearing by counsel for the applicant were:-

Ground 1 - The learned trial judge erred in not giving sufficient weight to the combination of factors identified in s 16A(2) (m), (n), (p) Crimes Act 1914.

Ground 2 - The learned sentencing judge gave insufficient weight to the role played by Hayden Scott in considering the offences committed by the applicant.

Ground 4 - The learned trial judge erred imposing a sentence which in the circumstances was manifestly excessive. 21 A further ground of appeal in the grounds of appeal which had been filed was not pressed at the hearing. 22 At the hearing of the application counsel for the applicant informed the Court that the head sentences set by her Honour were not challenged. The applicant's contention was that the date on which the recognizances release order would take effect should be brought forward. 23 I will now deal in turn with the grounds of appeal.

Ground 1 - The learned trial judge erred in not giving sufficient weight to the combination of factors identified in s 16A(2) (m), (n), (p) Crimes Act 1914. 24 Although the ground of appeal refers to all of pars (m), (n) and (p) of s 16A(2) of the Crimes Act, the only paragraph which was really pressed was par (p). 25 Paragraph (p) provides that a sentencing court must take into account "the probable effect that any sentence…under consideration would have on any of the person's family or dependants". 26 I have already referred to the applicant's infant son James born 27 August 2005, who was just over 2 years old at the time the applicant was sentenced. The sentencing judge found that the applicant was James' primary care giver and that James was at an age when he needed a great deal of attention from his primary care giver. The applicant had been living with a sister of her partner, that is an aunt of the child. If the applicant was sentenced to full time custody, this aunt would become the child's primary carer. She would be assisted by the child's father and another aunt. 27 There was admitted into evidence in the proceedings on sentence a pamphlet prepared by the Department of Corrective Services headed "Mothers and Children Programme". 28 At par 33 of her remarks on sentence her Honour said:- "There is material before the Court as to the Department of Corrective Services' Mothers and Children's Programme. Quite likely it is that the programme would be suitable for the offender and young James. Given his age, he would qualify, and he would be at an age when he could spend time in prison without that experience scarring him for life. However, if the offender does apply for the Mothers and Children's Programme, there will be an initial three months separation from her son. Because there are other requirements for entry to the programme there is no guarantee that, even after three months, the offender will be united with James. However, I am satisfied on the material before me that there is a good likelihood that if the offender wants to go down that path, she will be reunited with James in a custodial environment after about three months." 29 In par 34 of her remarks on sentence her Honour said:- "These circumstances do not amount to "exceptional circumstances" in term of the effect which the offender's incarceration will have on her family. Luckily for James, there is community support, which means that, although he will be very distressed by the three months separation from his mother, his level of distress will be no more than any other child of his age who is close to his mother would experience. While I give some weight to the factor of the offender's separation from James, both from her point of view and from his point of view, to my mind the situation is not so exceptional as would, for example, suggest that the offender should be given less than a full-time custodial sentence where that sentence was otherwise warranted. In my view it is warranted." 30 In my opinion, par 34 should be read with par 33 and should not be interpreted as containing a finding, which would be inconsistent with a finding made in par 33, that, if the programme was entered into, James would after three months definitely be reunited with his mother. 31 It was submitted on behalf of the applicant that it had not been open to the sentencing judge to make the finding in par 33 of her remarks on sentence, that, if the applicant wished to enter into the Department of Corrective Services' Mothers and Children's Programme, there was a good likelihood that she would be reunited with her child within the correctional system after about three months. 32 The evidence before the sentencing judge included the pamphlet about the Mothers and Children's Programme. However, as was pointed out by the applicant's representative in the proceedings on sentence, there was no evidence that the applicant had been, or would be, classified as suitable for entry into the Programme. 33 The applicant's evidence in the proceedings on sentence about whether she would want to enter into such a programme was somewhat ambivalent. However, she did give evidence that she would rather enter into such a programme than be separated from her child. 34 Counsel for the applicant's submission before this Court that it had not been open to the sentencing judge to make the particular finding relied heavily on the judgments in this Court in two cases involving the same party R v Togias (2001) 127 A Crim R 23, which I will refer to as Togias 1, and R v Togias (2002) 132 A Crim R 573, which I will refer to as Togias 2. 35 The extraordinary history of the criminal proceedings against Ms Togias was outlined by Hodgson JA in his judgment in Togias 2 at pp 574-575. 36 Ms Togias was charged with importing a commercial quantity of a prohibited drug into Australia. She pleaded guilty to the offence. 37 When Ms Togias first appeared for sentence she was 5 ½ months pregnant. The proceedings on sentence were adjourned until after she had given birth to her child, Ms Togias being granted bail. The proceedings on sentence were then further adjourned. 38 On a further adjourned date evidence was given by a psychologist that separation of Ms Togias from her baby would be "absolutely traumatic" for the baby. Evidence was given that there was a facility within the correctional system in which Ms Togias, if sentenced to full time imprisonment, could care for her child. However, acceptance into that facility would depend on an assessment which would take a number of weeks, during which she would be separated from her child. The programme in Togias would appear to be the same as, or at least substantially similar to, the programme of which evidence was given in the present case. 39 Ultimately the District Court judge sentenced Ms Togias to imprisonment for three years but directed that she be released forthwith upon entering into a recognizance to be of good behaviour for three years. 40 A Crown appeal against sentence was brought. The Crown appeal was allowed by the Court of Criminal Appeal (Togias 1) but the Court of Criminal Appeal did not itself re-sentence Ms Togias, remitting the matter for sentence to the District Court. 41 The matter came before a second District Court judge. Evidence was given before this judge that, although some of the assessments of the suitability of Ms Togias for admission to the programme could be carried out before she entered into custody, there would still be a delay of some weeks from the date of admission into custody before the question of her suitability for admission to the programme could finally be determined, during which Ms Togias and her child would be separated. 42 The second District Court judge sentenced Ms Togias to imprisonment for five years but ordered that she be released forthwith upon entering into a recognizance to be of good behaviour for five years. 43 A Crown appeal was brought against this second sentence. By majority (Hodgson JA, Simpson J agreeing, Smart AJA dissenting) the Crown appeal was dismissed. The majority held that a full time custodial sentence would necessarily mean separation of Ms Togias from her child for some weeks, while she was being assessed for inclusion in the programme, and that the Court should proceed on the basis that there was a probability, within s 16A(2)(p) of the Crimes Act, that Ms Togias would be separated from her child for the whole of any full time custodial sentence. The majority were influenced to dismiss the Crown appeal by the extraordinary circumstances that Ms Togias had been subjected to two separate and protracted sentence hearings in the District Court and two Crown appeals against sentence. 44 In Togias 1 it was held that the first sentencing judge should have deferred passing sentence on Ms Togias until after she had been assessed for her suitability for inclusion in the programme, so that the sentencing judge would know whether there would be any separation of Ms Togias from her child, if a full time custodial sentence was imposed. In the present case, the sentencing judge sentenced the applicant before her suitability for admission to the Mothers and Children's Programme had been assessed. However, it was not submitted by counsel for the applicant that the sentencing of the applicant had been invalidated by reason of her Honour having sentenced the applicant before her suitability had been assessed. In any event, it would appear that the suitability of a prisoner, who is a mother with a young child, for admission to the Mothers and Children's Programme cannot be determined, at least finally, until after the prisoner has been sentenced and information about the sentence imposed and the sentencing judge's remarks on sentence are available to be considered by the correctional services authorities. 45 Counsel for the applicant's submission about par (p) of s 16A(2) was based on a part of the judgment of Hodgson JA in Togias 2 (at 581 (26) and (27)), in which his Honour said that, in the absence of any evidence of even a provisional determination of the suitability of Ms Togias for admission to the Mothers and Children's Programme, it having been within the power of the Department of Corrective Services but not within the power to Ms Togias to produce such evidence, the court should infer that there was a probability that Ms Togias would be separated from her child for the whole of any sentence of full time imprisonment imposed on her. 46 It was submitted that in the present case, there being no evidence of even a provisional determination of the suitability of the applicant for admission to the Mothers and Children's Programme, the inference should be drawn that the applicant would be separated from her child for the whole of any sentence of full-time imprisonment, and not merely the first three months, and that it had not been open to the sentencing judge to make the finding that, if the applicant wished to be admitted to the Programme, there was a good likelihood that she would be reunited with her child within the correctional system after about three months. 47 I do not consider that this submission should be accepted. 48 I would not regard the Court of Criminal Appeal in Togias 2 as having laid down a general principle that, where a person to be sentenced is a woman with an infant child and there is evidence of a programme for mothers and children conducted by the Department of Corrective Services but no evidence that the woman in question has yet been assessed as suitable for admission to the programme, a sentencing court must infer that there is a probability that the woman will be separated from her child for the whole of any sentence of full time imprisonment which is imposed. 49 The inference drawn by the majority of the court in Togias 2 depended, at least partly, on the extraordinary history of the proceedings involving Ms Togias. The court proceedings relating to the sentencing of Ms Togias extended over approximately two years. It was obvious from the time of the first sentencing proceedings in the District Court that the welfare of Ms Togias' child would be central to the sentencing of Ms Togias. In Togias 1 members of the Court of Criminal Appeal referred, pointedly, to the absence of any evidence of any assessment of the suitability of Ms Togias for admission to the programme. However, at the time of the sentencing proceedings before the second District Court judge, several months afterwards, there was still no evidence of even a provisional assessment of Ms Togias' suitability. In these circumstances it is understandable why the Court of Criminal Appeal in Togias 2 drew the inference it did. 50 In my opinion, the findings of fact made by the sentencing judge in the present case in par 33 of her remarks, including that, if a full time sentence was imposed, there would be a separation of the applicant and her child for three months, that there was no guarantee that after three months the applicant and her child would be reunited but there was a good likelihood that, if the applicant wished to enter into the programme, she would be reunited with her child after about three months, were open to her Honour. It would, of course, have been of assistance to her Honour, if there had been evidence that at least some sort of provisional assessment of the applicant's suitability for admission to the programme had been made. 51 I would reject the first ground of appeal.

Ground 2 - The learned sentencing judge gave insufficient weight to the role played by Hayden Scott in considering the offences committed by the applicant. 52 In my opinion, this ground of appeal can be dealt with quite summarily. 53 When summarising her Honour's remarks on sentence I noted that her Honour made findings that the applicant's criminal offending had been associated with her use of drugs and her relationship with Scott and that it was Scott who had introduced her to the use of drugs other than cannabis. 54 I am satisfied that her Honour took these findings into account in sentencing the applicant. As has been stated by this Court on a number of occasions, a ground of appeal that insufficient weight was given to a factor which was clearly taken into account by the sentencing judge, is difficult to sustain. 55 I would reject this ground of appeal.

Ground 3 - The effect of delay. 56 Her Honour recognised in her remarks on sentence that there had been a delay of two and a half years between the discovery of the applicant's offending and the commencement of court proceedings against her and that during that period the applicant had achieved a substantial degree of rehabilitation, dramatically reducing her use of drugs. 57 As in the case of the previous ground of appeal, I am satisfied that her Honour took these findings into account in sentencing the applicant and a submission that her Honour gave insufficient weight to these findings should not be accepted.

Ground 4 - The learned trial judge erred imposing a sentence which in the circumstances was manifestly excessive. 58 It was conceded by counsel for the applicant that this ground of appeal really depended on an acceptance of one or more of the previous grounds of appeal. As I have rejected all of those grounds, I would also reject this ground of appeal. 59 As I have rejected all of the grounds of appeal, while leave to appeal should be granted, the appeal against sentence should be dismissed. 60 FULLERTON J: I agree with James J. **********

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