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[2016] QCA 176
General information, not legal advice.
Court of Appeal (Qld)
2016-06-24
Fraser and Gotterson and Philip McMurdo JJASeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Buckman [2016] QCA 176
PARTIES: R v BUCKMAN, Kristy Marie (applicant)
FILE NO/S: CA No 21 of 2016 / DC No 1894 of 2015
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 15 January 2016
DELIVERED ON: 24 June 2016
DELIVERED AT: Brisbane
HEARING DATE: 16 June 2016
JUDGES: Fraser and Gotterson and Philip McMurdo JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: The application for leave to appeal against sentence is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth) – where the applicant was sentenced to concurrent terms of imprisonment of three years on counts 1 and 2 and 15 months on count 3 – where an order was made under s 20(1)(b) of the Crimes Act 1914 (Cth) that the applicant be released after serving 14 months upon entering into a recognizance in the sum of $1,000 conditioned that she be of good behaviour for four years – where the applicant applies for leave to appeal on the ground that the sentences are manifestly excessive –where the applicant, at the time of sentencing, was already in custody for another similar offence – where the applicant alleged that the pre-release period was excessive and that the sentencing judge had disregarded the ‘totality principle’ – where the offending occurred over 16 months and involved a loss to Medicare of approximately $189,000 – where the applicant used this money to finance her gambling addiction – where the applicant had taken significant steps to overcome this addiction since her arrest – where the applicant was unable to make reparations – whether the sentencing judge had disregarded the ‘totality principle’ – whether the sentence, in all the circumstances, was manifestly excessive / Crimes Act 1914 (Cth), s 16B, s 20 / Criminal Code (Cth), s 134.2, s 135.1 / El Rakhawy v The Queen (2011) 214 A Crim R 124; [2011] WASCA 209, considered / Hanaia v R [2012] NSWCCA 220, cited / Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited / Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited / R v Baker [2000] NSWCCA 85, cited / R v Beasley [2013] QCA 322, cited / R v Kirby; ex parte A-G (Qld) (2009) 193 A Crim R 357; [2009] QCA 35, considered
COUNSEL: A M Christie for the applicant / W S Ferguson (sol) for the respondent
SOLICITORS: Richard Gray & Associates for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent
FRASER JA: The applicant pleaded guilty to three counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth). On 15 January 2016, she was sentenced to concurrent terms of imprisonment of three years on counts 1 and 2 and 15 months on count 3. An order was made under s 20(1)(b) of the Crimes Act 1914 (Cth) that the applicant be released after serving 14 months upon entering into a recognizance in the sum of $1,000 conditioned that she be of good behaviour for four years. The applicant has applied for leave to appeal on the ground that the sentences are manifestly excessive having regard to the applicant’s circumstances and the circumstances of the offences.
The offending occurred over 16 months between May 2011 and November 2012 and involved a loss to Medicare of about $189,000. The applicant used the Medicare numbers of 518 patients of the medical practices where she worked and a number of different bank accounts to reduce the prospects of detection. In count 2, in which the offending escalated, the applicant attended at her place of employment out of hours to process claims and she received about $5,750 per week from her offending. The sentencing judge accepted that the offending arose out of some difficulties in the applicant’s life associated with drug use and the development of a significant gambling addiction, which the applicant kept from her family. She began to take significant steps to overcome it only after the subject charges came to light. The sentencing judge acknowledged that the applicant had sought and received counselling and made significant attempts at rehabilitation before she was imprisoned and more particularly whilst she was in prison. The applicant had been a model prisoner. The sentencing judge also acknowledged that the applicant would not be able to obtain work in medical practices again and that she had undertaken various courses to retrain herself in different fields.
The applicant was aged between 31 and 33 when she committed the offences and she was 36 when she was sentenced. She had a relevant criminal history. In May 2006, she had been convicted and released on her own recognizance to be of good behaviour for 12 months and ordered to make reparation in an amount exceeding $4,000 for an offence of knowingly making a statement which was misleading in a material particular. In that offence the applicant made 22 claims for Medicare benefits in which she relied upon false receipts she generated using her employer’s computer. The sentencing judge in this matter described that as a “relatively minor fraud”.
When the applicant was sentenced on 15 January 2016 for the offences the subject of this application she was serving a sentence imposed in June 2015 of two and a half years imprisonment, with a parole release date after eight months, for State offences of dishonesty (stealing as a servant). The applicant committed those offences on various dates between April and September 2013. She was then employed as a receptionist in a different medical practice, and she benefited from her offences to the extent of about $35,000.
(1988) 166 CLR 59. ↩
R v Beasley [2013] QCA 322 at [8], referring to Mill v The Queen (1998) 166 CLR 59 and Postiglione v The Queen (1997) 189 CLR 295. ↩
(1988) 166 CLR 59 at 66. ↩
See R v Baker [2000] NSWCCA 85 at [11] and Hanania v R [2012] NSWCCA 220 at [33]. ↩
(2011) 214 A Crim R 124; [2011] WASCA 209. ↩
R v Kirby; ex parte Attorney-General (Qld) [2009] QCA 35 at [24]. ↩
R
Buckman [2016] QCA 176
(1988) 166 CLR 59
(1997) 189 CLR 295
(1998) 166 CLR 59
The sentencing judge referred to the issue of totality arising by reason of the applicant’s June 2015 sentence, of which the applicant had served seven months. The sentencing judge considered that a sentence of three years imprisonment was “a little light” but was prepared to impose that sentence because of the applicant’s good conduct in prison and on the footing that the applicant’s release date should be set at 14 months from the date of sentence, being about 21 months after the commencement of the previous sentence and close to the mid-point of the total period of the applicant’s imprisonment of three years and seven months. Accordingly the sentencing judge fixed a non-parole period of 14 months, expiring on 15 March 2017. The sentencing judge also ordered the applicant make reparations to the Commonwealth in the sum of $189,316, although the sentencing judge recognised that there was no current prospect of the Commonwealth recovering that amount.
The applicant did not challenge the head sentence of three years imprisonment but argued that the sentencing judge had overlooked his intention to reduce the parole release date to reflect the seven months imprisonment the applicant had served for crimes closely related in time and character to those for which the applicant was being sentenced. A premise of this argument was that the total pre-release period of 21 months was necessarily excessive. It was submitted that in this respect the sentence disregarded the “totality principle” affirmed in Mill v The Queen1 and expressed in the Crimes Act 1914 (Cth), s 16B. That principle “requires sentencing judges to review each component of a sentence to ensure that the overall sentence is ‘just and appropriate’ in all the circumstances, being especially careful in the case of cumulative terms of imprisonment to ensure that the sentence is ‘not disproportionate to the offender’s overall criminality and that it does not stifle prospects of rehabilitation’”.2
The applicant contended that the sentencing judge should have adopted what was described in the joint judgment in Mill v The Queen as “the proper approach”, namely, “to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all [the offences] in one jurisdiction and had been sentenced at one time”.3 The sentencing judge did address that question. In the context of a reference to the totality principle, his Honour observed that “the consequence of imposing a three year head sentence is that you’ll have [a] fulltime release date in three years and seven months from the imposition of the sentence [of two and a half years imprisonment with release on parole after eight months]” and “it’s appropriate that you serve something close to a half of that total before you’re released, and in that circumstance I intend to set what’s effectively your release date about 21 months after her Honour’s sentence, which is 14 months from today.”
The sentencing judge took into account the totality principle in imposing the sentence, both in relation to the term and the pre-release period. In effect, the applicant’s argument is, as the respondent submitted, that the sentencing judge gave insufficient weight to that principle in relation to the length of the pre-release period. The weight to be afforded to that factor was a matter within the discretion of the sentencing judge. Appellate intervention in this case could be justified only if the sentence as a whole were found to manifestly excessive.4
In El Rakhawy v The Queen,5 a medical practitioner was given an effective sentence of four years imprisonment with a non-parole period of two years and four months on his pleas of guilty to 11 counts of dishonestly obtaining a gain from Medicare contrary to s 135.1 of the Criminal Code (Cth). The maximum penalty for each offence was five years imprisonment. Over about 28 months that offender made 170 claims for services which he knew had not occurred, using his patients’ Medicare numbers, resulting in a loss to Medicare of about $122,000. The offender was 52 years old, had no relevant criminal history, entered an early plea of guilty, and made full reparation before sentence. His motivation appeared to be that he had large liabilities and found it difficult to meet his financial obligations.
As the applicant argued, the circumstance that the offender in El Rakhawy v The Queen was a medical practitioner and his offending involved a breach of trust was regarded as significant in his sentence. The applicant is not a medical practitioner, but her offending involved a breach of trust in the sense that she took advantage of her access as an employee to the Medicare numbers of the 518 patients kept by her employer at the medical practices where she worked. Overall the applicant’s offending was significantly more serious, particularly because the amount defrauded was much larger, she was not in a position to make any restitution, and she had a relevant criminal history. Even accepting, as the applicant submitted, that the subsequent offences for which the applicant was sentenced to two and a half years imprisonment “ordinarily should be given less weight than previous offences, and less weight again than previous offences for which convictions have been recorded”,6 the guidance supplied by El Rakhawy v The Queen indicates that a more severe sentence than three years imprisonment could have been imposed for the Commonwealth offences*.* When the State offences for which the applicant was sentenced to two and a half years imprisonment with release after eight months are also taken into account, the total effective sentence of three years and seven months imprisonment with provision for release after about 21 months could not be regarded as excessive or unjust given the totality of the applicant’s offending in all of the circumstances.
I conclude that the sentence imposed upon the applicant was not manifestly excessive. The application for leave to appeal against sentence should be refused.
GOTTERSON JA: I agree with the order proposed by Fraser JA and with his Honour’s reasons for it.
PHILIP McMURDO JA: I agree with Fraser JA.