R v Brewer [2004] ACTCA 10

Court of Appeal (ACT)|2004-06-01|Before: Gyles JJ

1. This is an appeal by the Crown against what is said to be the manifest inadequacy of a sentence imposed on the respondent on 21 November 2003. The respondent was convicted of two counts of defrauding the Commonwealth and one count of general dishonesty causing risk of loss. She was sentenced to 12 months imprisonment on each of the first two counts, to be served concurrently, and to 12 months imprisonment on the third count, to be served cumulatively, making an effective head sentence of two years imprisonment that was fully suspended upon the respondent entering into a recognizance to be of good behaviour for a period of three years. The offences to which she pleaded guilty related to fraud and overpayment of Commonwealth Social Security benefits over a period from 1994 to 2002 in the total sum of $80,849.84.

2. The relevant portions of the sentencing remarks of the primary judge are as follows:

...I take account of the age and previous good record of the offender. I have taken account of her positive achievements, as well as, effectively, the absence of prior bad conduct on her part. There is also a considerable history of good conduct and conduct that was, in my opinion, of considerable value to the community. I consider that the offender is entitled to draw upon that previous good character to offset the conduct in which she has engaged, notwithstanding the fact that that criminal conduct was, of course, reprehensible and would ordinarily, as the Crown submitted, not only attract a sentence of imprisonment but require that part of it at least be served.

3. The statutory basis for a prosecution appeal on sentence is found in s 37E of the Supreme Court Act 1933, and the well established principles on sentencing appeals from House v The King [1936] HCA 40; (1936) 55 CLR 499 clearly apply. This was restated in The Queen v Tait (1979) 46 FLR 386 where the Full Court of the Federal Court (Brennan, Deane and Gallop JJ) said at 388:

An Appellant Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.

4. Their Honours went on to say that, although the general principles on appeal against sentence applied to Crown Appeals, there were also special considerations -

Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence.

5. The principles applicable in Crown appeals against sentence were recently restated in this Court in R v Lappas [2003] ACTCA 21 (2003) 152 ACTR 7. See also R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, approved in GAS v The Queen [2004] HCA 22 at [14].

6. The primary judge formed the view that the objective seriousness of the offences required a sentence of imprisonment, and from this the Crown does not demur. Where his Honour is said to have fallen into error is in his decision to fully suspend the sentence.

7. We are of the view that the statement of facts reveal these to have been serious frauds on the welfare authorities with few, if any, relevant extenuating circumstances. The respondent was born in 1940. She married a Mr Millar in 1960, and was divorced in 1966. She obtained a degree in Bachelor of Arts with Honours from the University of Sydney in 1970, and the degree of Master of Arts from the University of Nottingham in the United Kingdom in 1972. She has worked at various universities through the 1970's.

8. In 1983 she claimed welfare benefits, in the name of Patricia Brewer but with a falsified birth certificate, which gave her date of birth as 5 January 1949 rather than 5 January 1940. These benefits, originally sickness benefit, then unemployment benefit and then Newstart Allowance, continued to be paid into her nominated bank account in the name of Brewer from 1983 to March 2000.

9. On 6 December 1994, while in receipt of Newstart Allowance under the name of Patricia Brewer, the respondent lodged an application for Job Search Allowance under the name of Patricia Millar. She gave her true date of birth, 5 January 1940, and annexed her marriage certificate although she had been divorced since 1966. The application nominated a bank account in the name of Millar, said to be her only bank account, which was not the same account into which the benefits to Brewer were being paid. The claim was accepted and she was in receipt of Job Search, New Start Allowance, Mature Age Allowance and the Age Pension until August 2002. A total of $52,314.38 was paid to her under the name of Millar in the period from 6 December 1994 to August 2002 to which she was not entitled, at a time when she was also in receipt of benefits in the name of Brewer to which she was entitled, subject to her employment.

10. While she was in receipt of benefits in the name of Brewer, which were based on her being unemployed, the respondent was in fact in employment which she did not disclose. She was employed on a casual basis as an academic with the University of Canberra from 3 March 1996, and then on a full-time basis from 1 February 2001. She was awarded her degree of Doctor of Philosophy from the University of New England in 2002. The overpayment of her allowance due to her failure to disclose her real employment status was calculated on the statement of facts to be $28,535.46. The total sum improperly obtained was thus $80,849.84.

11. This fraud was calculated and persistent. It involved relying upon a falsified birth certificate and claiming benefits under two names, as well as failing to disclose employment. A significant amount of money was involved, and the frauds took place over a significant period of time. They did not wholly cease voluntarily. The respondent was clearly an intelligent and mature person, and indeed over the period of the criminal conduct she obtained a higher degree by way of a study culminating in the award of a PhD and was employed as a Lecturer in the School of Management and Policy in the University of Canberra.

12. The primary judge correctly observed that such conduct would ordinarily "not only attract a sentence of imprisonment but require that part of it at least be served". There is a long line of New South Wales Court of Appeal authority to the effect that in the case of fraud against the social security system a custodial sentence should be imposed unless there are "very special circumstances" justifying some lesser order: R v Van Tung Luu (unreported, 7 December 1984), R v David Fernanda Medina (unreported, 28 May 1990), Kenneth Raymond Mears (1991) 53 A Crim R 141 at 145, R v Purdon (unreported, 27 March 1997).

13. In Kovacevic v R [2000] SASC 106, (2000) 111 A Crim R 131, Doyle CJ, Mullighan, Bleby and Martin JJ expressed a similar view in somewhat different language in relation to similar offences, saying (at [45]) -

While imprisonment is likely to be required, it is preferable not to say that a case must be exceptional before a different approach is taken. For example, some offenders in this area are persons whose circumstances are extremely difficult, indeed distressing. An offender might be virtually destitute with dependents to support. An offender might act as a result of domestic pressures that few people could withstand. That might be a circumstance, coupled with other circumstances, that warrants a more merciful approach in imposing sentence, even though it is a circumstance which is not wholly exceptional, because it tends to recur with this type of offending. It is for that reason that it is safer to say that imprisonment is the starting point, rather than that the case must exhibit exceptional features before a court can properly refrain from making an order for imprisonment. In saying this, we do not intend to undermine our earlier statement that in cases of sustained and deliberate fraud, imprisonment is likely to be required.

14. Counsel for the respondent spent some time analysing what he submitted to be a fundamental difference in the approach between the South Australian and New South Wales Courts on the appropriateness of a custodial sentence for offences of social security fraud, and he cited certain remarks of Crispin J in Cruse v Treminio [2001] ACTSC 59 to support this view. In our view, the difference is only one of emphasis rather than principle. The formulation adopted by the New South Wales Court of Appeal that "special", or even "very special" circumstances must be shown to justify anything other than an immediate custodial sentence, could lead to error if it were taken to mean that a non-custodial sentence would only be appropriate in circumstances that were mathematically unusual, and a sentencing magistrate or judge would err if they refused to look at the individual circumstances of the offender beyond finding that those circumstances were not unique or unusual. As Crispin J observed in Cruse v Treminio at [6] -

Judges and magistrates frequently state that for offences of a particular kind sentences requiring the offenders to actually serve some period of imprisonment will generally be appropriate or even that such sentences will be appropriate save in exceptional circumstances. Such statements reflect the general experience of the courts and are intended to sound a warning to those tempted to commit such offences. They should not be seen as the adoption of legal rules which, in effect, reverse the principle that a sentence of imprisonment should be imposed only when no other penalty would be adequate, and cast some onus onto offenders to demonstrate that their circumstances are sufficiently unusual to merit a description such as "exceptional" or "very special". It is true that lenient sentences should not be imposed if they do not reflect a just response to the criminal conduct of offenders. It is also true that in cases of deliberate and sustained fraud imprisonment is likely to be required and the scope for leniency may be limited. However, where leniency is warranted, it should not be withheld merely because it might also be warranted in other cases. Neither justice nor mercy should be rationed.

15. It seems to us that when properly understood there is no real difference in principle between the approach of the Courts in the two states. Indeed, the South Australian Court in Kovacevic at [49]-[72] discussed with approval decisions in various States and Territories including the relevant New South Wales authorities, and including the decision in R v Whitnall [1993] FCA 271; (1993) 42 FCR 512 in this Territory.

16. The primary judge acknowledged that the objective seriousness of the conduct here warranted a custodial sentence, and with this we agree. The authorities discussed above required as much. The effective head sentence of two years imposed was, it seems to us, very much at the low end of the available range of sentences, even given the factors which would have properly reduced a sentence that could otherwise have been imposed such as of the early plea of guilty, the age of the respondent, her previous good character, and the efforts that had been made at the time of sentencing to make reparation. To the extent that the respondent expressed remorse for the offences, this would have been fully reflected in fixing a head sentence that is in the low range. In her evidence and in remarks to a psychologist the respondent expressed regret at being caught, and regretted that she would in some way encourage the authorities to tighten access to social security. Whether this was the expression of true remorse is open to question. All of these factors were fully taken into account in the head sentence against which there is no appeal by either party.

17. The real question is whether the primary judge, in then deciding to fully suspend the sentences, fell into appealable error. We are of the view that he did.

18. In our opinion there are no subjective factors in the respondent's conduct to justify departure from the prima facie position established by the authorities and recognised by the primary judge in his sentencing remarks, namely, that fraud of this nature would lead to a term of imprisonment with part at least of that sentence to be served.

19. The otherwise good character of the respondent has no special features that would mark her out for lenient treatment compared with many other persons who, with prior good record, find themselves before the courts in relation to social security fraud. The authorities to which we have referred point out that many offenders in this field will be first offenders of otherwise good character. Good character was reflected in the effective head sentence of only two years. Although the primary judge made the remark in his sentencing that the respondent had "a considerable history of good conduct and conduct that was, in my opinion, of considerable value to the community" it seems to us that, beyond the finding that she was otherwise of good character, the respondent has no special features that would mark her out from many other members of the community of good character in carrying on their lives, careers and interests. Indeed, while the respondent has achieved high academic distinction, taught at university and pursued various causes which attracted her, this is a two-edged sword as it also goes to make her deliberate fraud extending over many years, in a sense, less capable of excuse than would otherwise be the case. Many persons convicted of social security fraud come before the courts in circumstances that, as was said in Kovacevic, are "extremely difficult, even distressing". Some with problems of literacy and numeracy, may be confused by their obligations towards the social security authorities. Many social security recipients suffer from disease or incapacity of various kinds. Many will be in severe poverty. Many will have a number of dependants. The respondent here is a mature and clearly intelligent woman, not indigent, who made a conscious decision, entirely for her own ends, to obtain a second benefit under a false name, and who also continued to receive the benefit to which she was entitled by failing to notify the authorities that she was employed by a university as a lecturer. To take her good character into account again in determining to wholly suspend an already modest sentence was to fall into error of principle.

20. There was material before the primary judge to the effect that the respondent's conduct was in some way affected by distress over caring for and the death of her mother, who passed away in 1998. The conduct giving rise to these offences began well before her mother's death and continued long after. The respondent did not live in Sydney and did not provide full-time care for her mother. This unfortunate family event does not amount to extenuating circumstances in relation to the offences themselves.

21. It is significant that the suspension of this sentence of imprisonment has little, if any, relevance to rehabilitation. The respondent is not in need of rehabilitation in the usual way. The respondent is most unlikely to re-offend. The supervision involved in a suspended sentence is not likely to have any positive effect upon the respondent. Rehabilitation may not be the only rationale for suspending a sentence but it is usually a significant factor (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321).

22. This circumstance also has relevance both to punishment and general deterrence. The respondent, and other members of the community, will understand that it is most unlikely that any part of this sentence of imprisonment would be served. Whilst a sentence of imprisonment as such is a punishment, a wholly suspended sentence in the case of an offender of otherwise good character is to be clearly distinguished in this respect from serving an actual period of imprisonment.

23. We are satisfied that the decision to wholly suspend the term of imprisonment was seriously out of line with established sentencing principle. It is important that sentencing for federal offences be consistent between States and Territories. We are satisfied that for offences of this objective seriousness by an offender of these antecedents, a sentence of imprisonment with some at least of the time to be served is necessary, and that the decision to wholly suspend the sentence was an appealable error. In our view, nothing less than a period of actual imprisonment would meet the needs of punishment and general deterrence in this case.

24. We should note that it was common ground that, since the imposition of the sentence (at which time there was evidence that some reparation had been made) the respondent has now made full reparation. We take this into account. We also take into account the aspects of double jeopardy and the cruel effect upon the respondent of now facing imprisonment following a Crown appeal which are referred to in Lappas at [32]-[34] and [119]-[121].

25. However, it seems to us that the decision to fully suspend the sentence of two years of imprisonment must be set aside, and in substitution it should be ordered that the sentence be suspended after the respondent serves six months imprisonment upon giving security in the sum of $500 conditioned that she be of good behaviour for a period of two years.

26. The effect of this is that the respondent will be required to serve a period of actual imprisonment that the primary judge indicated would have been appropriate but for his assessment of the subjective circumstances. We have found that those subjective circumstances did not warrant a wholly suspended sentence. The proposed period of six months is very much at the low end of time to be served against a head sentence of two years which, in turn, we regard as at the low end of the range. For that reason it would not be appropriate to give any further discount, even taking into account the fourth principle in Clarke at 522.

27. We note that the primary judge does not appear to have considered that periodic detention pursuant to the Periodic Detention Act 1995 would have been an appropriate alternative in the present case. There is no occasion to take a different view on appeal.

28. In our opinion the sentence that we propose does not amount to inappropriate "tinkering" in the sense described by the Federal Court in R v Cobb [1999] FCA 158; (1999) 84 FCR 450. We note that the Court in Cobb's case was of the view that a fully suspended sentence in that case was not manifestly inadequate (at 452, [14]). Their Honours' comments about the undesirability of substituting a short period of imprisonment for a wholly suspended sentence must be read in the context of their finding that the wholly suspended sentence was not manifestly inadequate. We do not regard Cobb's case as establishing a principle that, where an appellate court is satisfied that a wholly suspended sentence was so manifestly inadequate as to justify the setting aside of the sentence, it is inappropriate to adjust the sentence by requiring part of the sentence to be served. As we have said, in a case such as the present we see a significant difference from the point of view of both punishment and general deterrence between a wholly suspended sentence and actually serving an appreciable term of imprisonment on the other.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: The Commonwealth Director of Public Prosecutions

Solicitor for the Respondent: Vandenberg Reid Lawyers

Offenders (Interim) Act 2001

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