Court of Appeal (Qld)|2005-11-03|Before: McMurdo P, Williams JA and Atkinson JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINALAPPEAL LEGISLATION– MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE –EXTENSION OF TIME,NOTICE OF APPEAL AND ABANDONMENT – applicantconvicted on own plea of guilty of one count of defrauding the Commonwealth andone count of obtaining a financial advantage by deception – applicantsentenced to two years and six months imprisonment oneach count to be releasedafter serving 10 months imprisonment upon entering into a recognisance for$2,500 conditioned that he beof good behaviour for three years – where anexplanation has been given as to why the appeal was filed out of time –where there is no merit in the applicationCRIMINAL LAW – JUDGMENTAND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT –MISCELLANEOUS MATTERS– REPARATION AND RESTITUTION BY OFFENDER–applicant convicted of social security fraud – mitigating weight ofpre-sentence
restitution – where the applicant had made full restitution
of the total amount fraudulently obtained – consideration
of the factors
the court is required to take into account when sentencing under s 16A of the
Crimes Act 1914 (Cth) – where repayment is one of a number of
factors taken into account in determining the head sentence and the appropriate
ameliorating orderCrimes Act 1914 (Cth) s16AR v Conway
(2001) 121 A Crim R 177
[2001] NSWCCA 51, consideredR v. Hassarati
[2005] QCA 102
CA No 417 of 2004, 11 April 2005, consideredR v
Holdsworth [1993] QCA 242
CA No 94 of 1993, 22 June 1993, considered
R v Prosser, unreported, Beenleigh District Court, DC No 532 of 1999,
28 March 2000, considered
Judgment (24 paragraphs)
[1]
Director of Public Prosecutions (Commonwealth) for the respondent
[2]
ATKINSON J: The applicant was convicted on his own plea of guilty on one count of defrauding the Commonwealth, contrary to s 29D of the Crimes Act1914 (Cth), and one count of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code 1995 (Cth). He was sentenced in the District Court on each count to two and a half years imprisonment to be released after serving 10 months upon his entering into a recognisance in the sum of $2500, conditioned that he be of good behaviour for the period of three years. He was 39 years old at the time of sentence which was imposed on 21 June 2005.
[3]
His application is in the first instance for an extension of time in which to apply for leave to appeal against sentence. The circumstances requiring the making of an application for an extension of time were set out in the affidavit of the applicant's present solicitor. The solicitor who did not represent him on sentence deposes that Mr Carter is in gaol at Palen Creek Correctional Centre. The solicitor first received correspondence from Mr Carter on 18 September 2005 when Mr Carter wrote to the solicitor to ask him to visit him at Palen Creek to advise him in relation to an appeal against sentence.
[4]
On 23 September, the solicitor spoke to Mr Carter and his wife to give advice and to discuss the appeal. Mr Carter told him that following his sentence he had received legal advice against pursuing an appeal and had no further contact with his lawyers since then. He told the solicitor he had no knowledge of the time limit in which an appeal against sentence was to be lodged but that he had subsequently spoken to a barrister who advised him that he might be able to appeal against his sentence outside of the time provided that his appeal had sufficient merit. He then immediately contacted the solicitor. Mr Carter's family paid fees to the solicitor and the forms activating this application were then lodged on 29 September 2005.
[5]
In such a case as this where an explanation has been given, I would be prepared to hear the application for leave to appeal against sentence were it to have any merit.
[6]
The circumstances of these offences are that the applicant applied for and was granted a single parenting payment and a family payment on 12 January 2001. When he did so, he falsely claimed to have the custody of a daughter, Sunika. No such child exists. In support of his claim, he tendered to Centrelink a false New Zealand birth certificate which purported to show that Sunika Lata Carter was born at North Shore Hospital in New Zealand, and a school report from Kingston State School purportedly for Sunika Carter which was in fact a report for a child of a different name who was not in his custody.
[7]
The applicant was granted those benefits and he was paid from 18 January 2001 on the basis of his custody of the non-existent child. Those benefits were paid to him continuously until 8 July 2003 when they were cancelled on the basis that he no longer had custody of Sunika Carter.
[8]
On 3 January 2003, the applicant lodged a preliminary application for New Start allowance in the false name of Andrew Roger Jackson. On 15 January 2003, he completed and lodged a full claim for New Start allowance and a payment of those benefits was backdated to 20 December 2002. On 13 March 2003, the applicant applied for a parenting payment, single, again in the false name of Andrew Jackson on the basis that he had custody of a child named Sunika Lata Jackson said to have been born on 15 February 1997 in Brisbane. He also applied for and was paid a family tax benefit on the basis of his purported custody of Sunika Lata Jackson.
[9]
As a result of making these applications, the applicant's benefits in the name of Jackson were transferred from New Start allowance to parenting payment and family tax benefit. In support of the applications, the applicant provided Centrelink with a false Queensland birth certificate for Sunika Lata Jackson as well as a number of pieces of false identity documentation in the name of Jackson.
[10]
He was paid those benefits in the false name of Jackson from 20 December 2002 until 8 July 2003, when his offending was detected. It cannot be said that this offending occurred out of pressing need. It was a deliberate course of dishonest conduct carried out not once but over two separate periods requiring a significant degree of planning and premeditation. The sum fraudulently obtained by the applicant as a result of his offending was $54,240.91. Full restitution had been made at the date of sentence.
[11]
The maximum penalty for each of the offences is 10 years imprisonment or a fine of up to $110,000. The learned sentencing Judge referred to many factors in his sentencing remarks. These included that the social security system has been set up in the public interest to allow payments to people who are entitled to them so that they receive those payments as soon as possible. Those payments are often made in cases of great need. As a result, payments are often made before the accuracy and honesty of the applicant and the entitlement to actually receive payments is fully established.
"Social security fraud is a relatively easy crime to commit because persons who claim social security payments are often in genuine and urgent need and there is no time to investigate their bona fides closely."
[14]
Punishment in a case such as this acts as a deterrent not just to the individual wrongful claimant but discourages others from making false claims. This is consistent with the view expressed in this Court in Holdsworth[1993] QCA 242 where Pincus JA and Thomas J held at p4:
[15]
"It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught. Any notion that the Commonwealth and its departments are fair game for this type of activity is to be resisted. ... Activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud governmental agencies will find an unacceptable risk."
[16]
Of course, deterrence is not the only purpose of sentencing. The factors the Court is required to take into account are set out in s 16A(2) of the Crimes Act. It was the nature of the crime, the maximum penalties and the public interest involved which caused his Honour to impose a head sentence of two and a half years imprisonment. The applicant does not complain of that head sentence.
[17]
In mitigation, the sentencing Judge took into account that full repayment had been made although the applicant did not himself volunteer to the Commonwealth that he had been dishonest and that the applicant had no criminal history. His Honour also took into account the difficulties that the sentence would impose upon the applicant's family, particularly his wife. As a result, he made an order that the applicant be released after serving 10 months of the period of imprisonment imposed.
[18]
The head sentence imposed is the same as that imposed by the District Court in the case of R v Prosser, Beenleigh District Court, No 532 of 1999 (28 March 2000), referred to with approval by the Court of Appeal in R v Hassarati[2005] QCA 102 at p4. That was a case in which the defendant received payments of New Start allowance in a false name whilst also receiving them in his real name, working, and failing to disclose his earnings. The total amount defrauded over a period of five and half years was $50,539.17. He was a mature man of 40 years old with no previous convictions, and his offending was driven by his gambling addiction. He had a nine year old child whose custody he shared with his ex -wife.
[19]
The difference between that case and this is he had not made any repayment. However, an order for reparation was made. He too was sentenced to two and a half years imprisonment but the release on recognisance was to be after he had served 15 months imprisonment, not the 10 months that was ordered in this case.
[20]
A number of Court of Appeal cases were referred to but each of them demonstrates that the sentencing discretion must have regard to all of the factors referred to in Section 16A as well as all the factors which exacerbate or ameliorate the circumstances of the offending.
[21]
The applicant complained that insufficient benefit was given for full repayment. The difficulty for the applicant is that the learned sentencing Judge specifically referred to the full repayment although he noted when discussing it that the applicant did not himself disclose his offending. Both those matters are relevant to the sentence to be imposed. See s 16A(2)(f)(i) and s 16A(2)(p).
[22]
Sentencing is a discretion not a mathematical formula. There can be no complaint in these circumstances that the Court specifically failed to take into account the repayment made, nor in the circumstances that insufficient weight was given to that factor. It was one of a number of factors taken into account by the sentencing Judge in determining the head sentence and the appropriate ameliorating order. An examination of the circumstances of the offences and the comparable cases suggest that any application for leave to appeal against sentence would be unsuccessful and that there would therefore be no point in granting an application for extension of time.
[23]
As there is no utility in granting the application for extension of time, I would refuse the application.
[24]
WILLIAMS JA: The order of the Court is that the application for extension of time is refused.
Parties
Applicant/Plaintiff:
# R
Respondent/Defendant:
Carter \[2005\] QCA 402
R v Carter [2005] QCA 402 - QCA 2005 case summary — Zoe