R v Alimic [2006] VSCA 273

Court of Appeal (Vic)|2006-12-06|Before: WARREN CJ and NETTLE and REDLICH JJA

CRIMINAL LAW - Sentence - Defrauding the Commonwealth contrary to s.29D Crimes Act 1914 and ss.134.2(1) of the Criminal Code (C'th) - Income tax returns lodged in false names and fraudulently claiming of Family Tax Benefits - Plea of guilty - Whether sentence of five and a half years with a non-parole period of four years manifestly excessive - Whether judge failed to comply with ss.16A(1) and 19(2) of the Crimes Act 1914 (C'th) - Appeal dismissed.

1 I invite Nettle JA to deliver the first judgment.

2 On 6 December 2005 the applicant was arraigned before the County Court of Victoria on 37 counts of social security fraud, to which she pleaded guilty:

• Count 1 charged that the appellant had between 9 April 1998 and 9 January 2001 defrauded the Commonwealth by obtaining a payment of Family Tax Benefit, to which she was not entitled, in the amount of $9,897.61. Count 2 charged that she had between 25 May 2001 and 3 March 2002 dishonestly obtained a gain from the Commonwealth by obtaining a payment of Family Tax Benefit to which she was not entitled in the amount of $2,131.83. Count 3 charged that she had between 31 March 1998 and 8 November 2000 defrauded the Commonwealth by obtaining a payment of Family Tax Benefit to which she was not entitled in the amount of $66,140.06. Count 4 charged that she had between 14 July 2000 and 9 February 2001 defrauded the Commonwealth by obtaining a payment of Family Tax Benefit to which she was not entitled in the amount of $18,133. 55.

• Each of Counts 5 to 13, inclusive, charged that the appellant had on and between dates in April 1998 and December 2001 defrauded or attempted to defraud the Commonwealth by causing false income tax returns to be lodged with the Australian Taxation Office wherein she claimed tax refunds to which she was not entitled, thus: Count 5: in the amount of $34,547.55; Count 6: in the amount of $20,556.78; Count 7 (attempted) $18,844,87; Count 8: $21,074.55; Count 9: $9,582.40; Count 10 (attempted): $11,129.88; Count 11: $12,667.65; Count 12 (attempted): $11,130.36; Count 13: $56,855.92.

• Each of Counts 14 to 37 alleged that the appellant had between the same dates obtained or attempted to obtain financial advantage by deception from the Commonwealth in the same manner, thus Count 14: $26,416.07; and Count 15 (attempted): $454.64; Count 16: $24,966.02; Count 17: $21,992.97; Count 18 (attempted): $16,167.30; and Count 19: $16,753.80; Count 20: $16,596.03; Count 21 (attempted): $44,297.94; Count 22 (attempted): $43,720.90; Count 23: $18,655.56; Count 24: $15,842.19; Count 25 (attempted): $9,582.10; Count 26: $12,787.10; Count 27 (attempted): $8216.71; Count 28 (attempted): $14,217.24; Count 29: $15,309.29; Count 30 (attempted): $7,053.60; Count 31: $12,540.95; Count 32: $11,123.77; Count 33 (attempted): $4,370.85; Count 34: $11,544.84; Count 35 (attempted): $7,885.22; Count 36 (attempted): $15,027.70; and Count 37 (attempted): $10,475.97. [1]

3 Following a plea in mitigation of penalty, on 21 February 2006 the judge sentenced the appellant as follows:

On Counts 1 and 2: "to nine months imprisonment, each of those to commence this day".

On Count 3: "to 18 months' imprisonment to commence this day".

On Count 4: "to nine months' imprisonment also to commence this day".

On Counts 5, 6, 8, 9, 11, 13, 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34: "to two and a half years imprisonment. Each of those sentences to commence at the expiration of the sentence ... imposed on Counts 1 through to 4".

On Counts 7, 10, 12, 15, 18, 21, 22, 25, 27, 28, 30, 33, 35, 36 and 37: "to a term of imprisonment of 18 months' to commence on the expiration of the sentences imposed on all matters... previously dealt with".

"On my reckoning that makes an effective sentence of five and a half years' imprisonment,"

and her Honour fixed a minimum of four years before the appellant would be eligible for parole.

4 The appellant now appeals, with leave, against the sentence on grounds that the judge failed to comply with s.19(2) of the Crimes Act 1914 (C'th); imposed disproportionate sentences; and imposed sentences which in total were manifestly excessive.

Ground 1: Failure to comply with s.19(2) of the Crimes Act 1914 (C'th)

5 Section 19(2) of the Crimes Act 1914 (C'th) provides that:

"(2) Where:

(a) a person is convicted of 2 or more federal offences at the same sitting; and

(b) the person is sentenced to imprisonment for more than one of the offences,

the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences."

6 The appellant contends that by ordering that each of the sentences of two and a half years imprisonment imposed on Counts 5, 6, 8, 9, 11, 13, 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34 commence "at the expiration of the sentence ... imposed on Counts 1 through 4" the judge failed to comply with the requirement of s.19(2) to direct when those sentences were to commence. Likewise, it is said, the judge failed to direct when the next group of sentences of 18 months imprisonment was to commence.

7 In do not accept those contentions. The plain and ordinary meaning of what the judge ordered is this:

• The sentences of imprisonment imposed on Counts 1 to 4 run concurrently from the date on which sentence was imposed, with the longest of those sentences (being the sentence of 18 months' imprisonment imposed on Count 3) expiring 18 months after the date on which sentence was imposed;

• The sentences of imprisonment of two and a half years' imposed on Counts 5, 6, 8, 9, 11, 13, 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34 run concurrently from the date of expiration of the sentence imposed on Count 3, namely, the date 18 months after the date on which sentence was imposed, to a date two and a half years after that; and

• The sentences of imprisonment of 18 months' imposed in Counts 7, 10, 12, 15, 18, 21, 22, 25, 27, 28, 30, 33, 35, 36 and 37 run concurrently from the date of expiration of the sentence imposed on Counts 5, 6, 8, 9, 11, 13, 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34, namely, the date four years after the date on which sentence was imposed, to a date 18 months after that.

I add that if there were any doubt about it, and in my view there is not, it would be put beyond doubt by the judge's observation that what she had so ordered made for a total effective sentence of five and a half years' imprisonment.

8 Section 16A(1) of the Crimes Act 1914 (C'th) provides that:

"(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence."

9 The appellant submits that the judge acted contrary to the principle of proportionality adumbrated in s.16A(1), in three respects:

a) by imposing a sentence of 18 months imprisonment in respect of Count 15 (attempt to obtain financial advantage in the amount of $454.64) and at the same time imposing sentences of only nine months' imprisonment in respect of Count 1 (obtain financial advantage in the amount of $9,897.61), Count 2 (obtain financial advantage in the amount of $2,131.83) and Count 4 (obtain financial advantage in the amount of $18,133.55);

b) by imposing a sentence of nine months' imprisonment in respect of Count 2 (obtain financial advantage in the amount of $2,131.83) for which the maximum penalty was five years' imprisonment, and at the same time imposing a sentence of nine months' imprisonment in respect of each of Counts 1 (obtain financial advantage in the amount of $9,897.61) and Count 4 (obtain financial advantage in the amount of $18,133.55), for which the maximum penalty was ten years; and

c) by imposing sentences of 18 months' imprisonment in respect of each of Count 25 (attempt to obtain financial advantage in the amount of $9,582.10); Count 27 (attempt to obtain financial advantage in the amount of $8,216.71); Count 30 (attempt to obtain financial advantage in the amount of $7,053.60); count 33 (attempt to obtain financial advantage in the amount of $4,370.85) and Count 35 (attempt to obtain financial advantage in the amount of $7,885.22), when each of the offences the subject of those counts were committed in the space of a single year of income, and at the same time imposing sentences of 18 months' imprisonment in respect of each of Count 7 (attempt to obtain financial advantage in the amount of $18,844,87); Count 10 (attempt to obtain financial advantage in the amount of $11,129.88); Count 12 (attempted to obtain financial advantage in the amount of $11,130.36); Count 15 (attempt to obtain financial advantage in the amount $454.64; Count 18 (attempt to obtain financial advantage in the amount of $16,167.30); Count 22 (attempt to obtain financial advantage in the amount of $43,720.90; Count 28 (attempt to obtain financial advantage in the amount of $14,217.24); Count 36 (attempt to obtain financial advantage in the amount of $15,027.70); and Count 37 (attempt to obtain financial advantage in the amount of $10,475.97), where the latter were committed over the space of multiple years of income.

10 There is some force in that submission. Ordinarily in a case of this kind the relative gravity of offences of the sort in issue is to be assessed by reference to the amount of money involved in each offence.[2] Consequently, in this case one might have expected that there would be closer correlation between the amount of money involved in each offence and the sentence imposed in respect of the offence. The fact that identical sentences were imposed in respect of offences for which the amounts of money varied widely is a cause for concern, and it is of particular concern in cases like Count 15.

11 That said however, the particular circumstances of a given case may sometimes warrant departure from the usual approach and in this case the circumstances appear to have been unusual. The amounts of money which were involved obviously had a role to play in the assessment of penalties but it seems that other considerations also informed the sentencing synthesis.

12 Ultimately, as has been seen, the case proceeded as a plea. Before that occurred, the presentment, which had originally preferred 69 counts, was negotiated down to the 37 counts to which the appellant pleaded guilty. Consequently, as is apparent from the way in which the prosecutor opened the matter to the sentencing judge, a number of the counts as finally framed consisted of rolled up allegations and, as is to be expected in those circumstances, neither counsel submitted that the gravity of individual offences was to be distinguished solely on the basis of the amount of money involved. Additionally, in the case of the tax offences, the modus operandi was similar throughout and, for that reason , the amount of money involved was not necessarily the natural discrimen of culpability.

13 It is true that the judge did not explain the reasons for grouping the offences as she did or seek to justify the apparent disparities to which the appellant refers. It is also true that unexplained disparity in sentences for similar offences and unexplained orders as to cumulation may invite appellate suspicion that error has occurred. Ordinarily, a sentencing judge should explain why some such counts are chosen for heavier sentences than others and should explain the basis of orders of cumulation, so that suspicion can be avoided.[3] But that said, it is not always necessary that a judge spell out in express terms what is evident from the context.

14 Notwithstanding some significant reservations, I consider that in this case one can see from the context the basis on which the judge proceeded and the reasons for it. As the judge observed in her sentencing remarks, the offences were divided into two categories according to whether they were offences of obtaining Family Tax Benefits (Counts 1 to 4), or offences of obtaining or attempting to obtain money by means of false tax returns (Counts 5 to 37),[4] and in turn the latter category divided into two categories of obtaining moneys and attempting to obtain moneys.[5] Thus her Honour imposed individual sentences according to the category into which each offence fell, as follows:

• First, sentences of nine months' imprisonment were imposed for each of the counts of fraudulently obtaining Family Tax Benefits, which is to say, Counts 1 to 4, except for Count 3, in respect of which her Honour imposed a significantly larger sentence of eighteen months' imprisonment to reflect the fact that the amount of money involved in that offence was $66,140.06 compared to the amounts of $9,897.61, $2,131.83 and $18,133. 55 involved in Counts 1, 2 and 3.

• Secondly, sentences of two and a half years' imprisonment were imposed for each of the counts of defrauding the Commonwealth and obtaining

• financial advantage by the filing of a false tax return, namely, Counts 5, 6, 8, 9, 11, 13, 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34.

• Thirdly, sentences of eighteen months' imprisonment were imposed for each of the counts of attempting to defraud the Commonwealth and attempting to obtain financial advantage by the filing of a false tax return, namely, Counts 7, 10, 12, 15, 18, 21, 22, 25, 27, 28, 30, 33, 35, 36 and 37.

15 As I say, there is force in counsel's submission that there was room for a greater number of categories based on the amounts of money involved in each offence. Despite the fact that the modus operandi for each of the income tax return offences was substantially identical, I would allow that there was scope for the imposition of sentences more precisely related to the amounts of money involved in each case.[6] But as Callaway, J.A. observed in R v Albanus,[7] the fact that an unexplained structural difference can be discerned as between sentences imposed on multiple counts is not of itself evidence of sentencing error. In the end, the question is whether the sentences imposed are within range, and whether the orders as to cumulation can be justified. And if a judge adopts a broad brush approach in achieving that end then differences as between sentences will not matter unless the disconformity is such as to impugn the instinctive synthesis.[8]

16 Here as it seems to me the sentencing judge's approach was logical and it was essentially fair to the appellant, because of the way in which the judge cumulated the individual sentences. If the appellant received a slightly greater sentence on some counts than she might otherwise have received, she also received a slightly lesser sentence on other counts than she might otherwise have received. So, in totality she received no more than might have been produced by a sentencing regime more rigorously connected to the amount involved in each count. In any event, when one has regard to the amounts of money involved in each category, any differences between the sentences which were imposed and those which might have been imposed in the event of closer correlation between money and sentence are by and large of relatively small dimension. To the extent that there were shortcomings in the process, I am persuaded that they were of sufficiently small degree not to impugn the instinctive synthesis. It should, however, be clearly understood that it is because of the particular circumstances of this case that I am able to come to such a conclusion. Ordinarily, a sentencing judge should take care to make clear a precise and reasoned correlation between amounts involved and sentence imposed unless there are good reasons not to do so.

17 Under Ground 3 counsel for the appellant argued that a total effective sentence of five years and six months' with a non-parole period of four years was manifestly excessive when one has regard to the facts that :

a) The appellant pleaded guilty and thus saved the Commonwealth the costs and difficulties of a lengthy trial.

b) The appellant willingly returned to Australia after she had moved back overseas to live and thus exposed herself to prosecution.

c) The fact that the appellant was already serving a sentence for state offences at the time of sentencing for these offences and had therefore been in prison since May 2004.

d) It was said that the appellant had been subjected to a long history of domestic violence.

e) The appellant suffers from considerable ill health of which part of the problem is said to be that she is afflicted by the auto immune deficiency known as Lupus.

f) The appellant suffers from a depressive illness.

18 The difficulty with that submission is that the judge referred to each of the matters on which counsel relies and gave each of them detailed consideration as part of the sentencing synthesis.

19 Thus despite the fact that the plea of guilty came late, the judge noted that the appellant had co-operated with the prosecution by making extensive admissions even before the presentment was reduced to the 37 counts to which the plea was entered. Thus her Honour said that she considered that the appellant was entitled to credit for the plea, both for inferred remorse and the significant savings to the Commonwealth by avoidance of a trial.

20 The fact of the appellant's return to Australia was held to be of only limited significance. The judge found that there was no evidence to suggest that the appellant was aware that she would be subjected to charges in respect of these offences. All that could be said was that she was aware that she would have the potential to fact earlier state charges resulting from the fact that she had left this country in breach of bail relating to charges for state offences.

21 It is apparent too that the judge did not accept that the appellant was forced to return to this country because of a violent relationship with her husband. Her Honour accepted that there had been domestic violence and she considered that it was relevant to the appellant's prospects of rehabilitation. But her Honour found that the appellant's modus operandi for dealing with officialdom at the relevant time belied the suggestion that she would not have committed the offences and utilised the sorts of skills which she had if she had not been pressed to do so by her husband.

22 The judge paid close regard to the appellant's physical disabilities and concluded that there was no reason to think that they could not be adequately treated in gaol and the same was true of her psychological disorders. There was insufficient evidence to sustain a conclusion that they would make life in gaol considerably more burdensome for the appellant than for others. Further material has been filed in support of the appeal, but in my view it takes the matter no further. It consists of an affidavit of the appellant's solicitor, to which is exhibited a fax transmission from St Vincent's Hospital, and as therein appears the appellant is receiving weekly specialist care for her condition at the hospital with significant beneficial effect. Plainly, the appellant's medical needs are receiving appropriate attention.

23 The judge also gave careful consideration to the question of whether the appellants psychological condition and was obviously mindful of the sentencing principles essayed in Tsiaras.[9] Her conclusion, however, was that they did not apply because was no evidence of psychotic disorder or intellectual disability of any significant degree. With respect, I see no reason to disagree.

24 Counsel for the appellant submitted that the judge erred in the exercise of her sentencing discretion by failing to moderate and cumulate sentences so as to achieve a total effective sentence which was proportionate to the overall criminality of the appellant's offending and, bearing in mind that the applicant had served an eight month sentence on other offences before pre-sentence detention began to run in respect of these offences, so as to avoid a sentence that was crushing.

25 Subject to the question of the sentence imposed in respect of Count 15, I do not accept that contention either. The offences for which the appellant was sentenced comprised a systematic criminal enterprise calculated to defraud the Commonwealth of hundreds of thousands of dollars on a regular and recurring basis over a period of more than four years. They involved in excess of $456,116.49 financial advantage actually obtained by fraud and a further $212,551.28 attempted to be obtained by fraud. As the Crown submitted, they were also callous and unscrupulous. In the case of the Family Tax Benefits offences, that was graphically illustrated by the fact the appellant used the identity of her still born son as the basis for making the claims the subject of Counts 1 and 2. In the case of the tax offences, it was marked by the fact that the success of the offences was dependent on the appellant persuading registered tax agents of the legitimacy of her claims and, in order to do that, she routinely lied to them about her identity and circumstances and obtained their sympathetic assistance by routinely fabricated stories that she was suffering from cancer and stories of accidents and death in the family. Evidently, the offences were motivated by greed and, to make matters worse, the bulk of the offences were committed while the appellant was living abroad with her children; the bulk of the moneys was remitted abroad; none of it has been recovered; and the appellant has not provided any explanation of its whereabouts. The appellant's offending was further aggravated by the fact that she had committed previous offences of a similar nature for which she had been imprisoned and it is to be noted that she was on bail at the time of offending in connection with State offences.

26 Authority makes clear that the pre-eminent sentencing consideration in cases of social security fraud is general deterrence.[10] In this case, because of the previous offending, there was also a clear need for specific deterrence and, given the motive of greed and the failure to provide any explanation of the whereabouts of the money, there was also a need for just punishment. As the judge observed, those requirements had of course to be balanced against the discounts to be allowed to the appellant for her co-operation with the prosecution and her plea of guilty and her prospects of rehabilitation and the other mitigatory considerations to which the judge referred. As the judge noticed, it was also necessary to bear in mind that the appellant had served eight months for State offences immediately before being sentenced for these offences and that, while they could not strictly speaking be reckoned as pre-sentence detention, they were relevant for the purposes of totality. But all that having been said, the offences committed in this case were serious examples of fraud on the Commonwealth and hence they called for a substantial custodial sentence of which the majority should be served.[11]

27 The maximum sentence for defrauding the Commonwealth (Counts 1, 3, 4, 5, 6, 8, 9, 11 and 13) and the maximum sentence for attempting to defraud the Commonwealth (Counts 7, 10 and 12) is ten years imprisonment or a fine of $110,000 or both. The maximum sentence for dishonestly obtaining a gain from a Commonwealth entity (Count 2) is five years imprisonment. The maximum sentence for otaning a financial advantage by deception from the Commonwealth (Counts 14, 16, 17, 19, 20, 23, 24, 26, 29, 31, 32 and 34) and the maximum sentence for attempting to obtain a financial advantage by deception from the Commonwealth (Counts15, 18, 21, 22, 25, 27, 28, 30, 33, 35, 36 and 37) is ten years' imprisonment.

28 Given those maximum sentences, the nature and gravity of the appellant's offending, and the aggravating circumstances to which the judge referred, I consider that each of the individual sentences was within the range in the particular circumstances of this case, and that the degree of cumulation which the judge ordered and the minimum sentence were plainly appropriate.

30 I agree, for the reasons stated by Nettle JA, that the appeal should be dismissed.

31 I also agree that the appeal should be dismissed, for the reasons given by my brother Nettle. I would wish to add only this in relation to the appellant's complaint: that the method of sentencing here adopted gave rise to some anomalous sentences which failed to distinguish between the gravity of the individual offences. This

"broad-brush" principle discussed in R v Ash[12] and R v Belhaj[13] can only be applied in limited circumstances and always subject to established sentencing principles; in particular that the sentence imposed be appropriate to the count to which it relates in accordance with the principle of proportionality, usually achieved by the imposition of moderate penalties with orders for cumulation. It would have been preferable had there been explanation by the learned sentencing judge for the imposition of the same or similar sentences for offences involving markedly different monetary amounts. But I am not persuaded, for the reasons given by Nettle JA, that the absence of explanation in the present case demonstrates error in the head sentence or the non-parole period.

[1] The facts and circumstances of each offence appear in the agreed summary of which a copy is attached to these reasons for judgment.

[2] Cf R v Coukoulis [2003] VSCA 22; (2003) 7 VR 45 at 57 [34], per Ormiston JA.

[3] R v Ash [2005] VSCA 43 at [30] and [31] at [32], per Eames JA.

[8] Ibid at [9] See also R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258 at 265[25].

[9] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400-401; see also R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258 at 267[31]; cf R v DTR [2005] VSCA 291 at [17].

[10] DPP (C'th) v Milne [2001] VSCA 93 at [12] and [13]; Harding v Moreland [2006] WASC 8; (2006) 159 A Crim R 370 at 374[28].

[11] The Queen v Whitnall [1993] FCA 271; (1993) 42 FCR 512 at 519; R v Wright (1994) 74 A Crim R 152 at 153; DPP (C'th) v Carter [1998] 1 VR 601 at 610 and 611; Kovacevic v Mills (2000) 76 SASR 404 at [38]; Ralph v Nawrojee [2003] WASCA 5 at [25]; DPP (C'th) v Alateras [2004] VSCA 214 at [21] -[26].

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