Court of Appeal (Qld)|2001-03-14|Before: Murdo P, Pherson JA, Williams JA

R v Edwards; ex parte Cth Director of Public Prosecutions [2001] QCA 93 (14 March 2001)

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Appellant

The sentence imposed was two and a half years' imprisonment, to be immediately suspended upon the respondent entering into a recognisance to be of good behaviour, secured in the sum of $2,000, for a period of three years. It was also a condition of the recognisance that she be subject to probation supervision for a period of two years. Finally, a reparation order was made in the sum of $72,100.57.

From that sentence, the Commonwealth Director of Public Prosecutions has appealed to this Court submitting that, in all the circumstances, the respondent should have been required to serve a period of actual custody.

The principal charge involved the respondent receiving social security payments in two names, MacDonald and Edwards, the latter being her mother's maiden name and the name she now prefers to use. In other words, she was receiving two lots of social service payments. Also she commenced employment on 1 May 1998 and, in consequence of that, social security payments to which she was lawfully entitled should have been reduced in quantum. The total amount that she fraudulently obtained from the Commonwealth, the subject of that charge, was $47,550.30.

As I said, the sentencing Judge was also asked to take into account some 12 other charges. Those charges covered a period from 18 August 1988 to 30 November 1995. All of the charges involved the respondent obtaining social security payments which were either not payable or payable only in part.

On 12 September 1996, those charges were listed for hearing in the Maroochydore Magistrates Court on 29 and 30 January 1997. They were, however, mentioned again on 12 December 1996 when the respondent's solicitors sought and were granted leave to withdraw. The respondent failed to appear in that Court on 29 January 1997 and a warrant was issued for her arrest.

So it can be seen that the conduct, the subject of the principal charge to which the respondent pleaded guilty, were committed substantially after her failure to appear in the Maroochydore Magistrates Court and whilst there was a warrant out for her arrest with respect to those charges.

It should also be noted she fraudulently applied for Newstart Allowance Payments on 11 December 1996, the day before the other matters were mentioned in the Magistrates Court.

I should say that the total amount involved in the 12 other charges taken into account was the sum of $34,068.55 which means that there was a grand total involved of $81,618.85.

The material placed before the sentencing Judge disclosed systematic defrauding of the Commonwealth over an extensive period of time.

The social security system is primarily based on applicants making honest representations as to entitlement. The system has been liberalised and simplified over years to make it more understandable by general citizens but that has meant that the Department has had to rely on honest representations being made.

Here, there was deception involving a high degree of cunning employed by the respondent in order to obtain payments to which she was not entitled. It involved the use of false names and the use of false documentation to satisfy authorities that the name given was genuine. The use of false identification makes the conduct more reprehensible, in my view.

Given all of that, it seems to me that a custodial sentence could well have been justified on those matters alone. However, the respondent does have a remarkable criminal history of offences involving false pretences or fraud.

She was first dealt with for such an offence on 15 November 1988 in the Brisbane Magistrates Court. That involved a charge of false pretences. She was placed on probation for a period of 12 months.

Her next appearance was in the Brisbane District Court on

9 June 1989 on two charges of obtaining property by passing valueless cheques. Again, she was placed on probation for a period of 12 months.

The next relevant matter was on 9 July 1992 when she appeared in the Inala Magistrates Court on 16 charges of false pretences and two charges of attempted false pretences. Notwithstanding the earlier probation orders, the Court was again persuaded to place her on probation for a period of 18 months.

She next appeared in the Cleveland Magistrates Court on

7 September 1992 on three charges of false pretences and on that occasion was placed on probation for three years with conditions that she undergo medical, psychological and psychiatric testing and treatment as directed by the probation office. That order also included a restitution order of $1,536.

The next relevant convictions occurred in August 1997, and I interpolate, of course, that this was after the warrant had issued for her arrest with respect to the 12 additional counts taken into account before the sentencing Judge. Probably because of the variety of names being used she was not identified as the person subject to the warrant.

She appeared in the Maroochydore Magistrates Court on that date, was dealt with for 10 charges of imposition by false representation, nine charges of false pretences and one charge of obtaining credit by fraud.

With respect to the imposition charges she was convicted, placed on probation for three years, ordered to pay restitution in the sum of $3,659.65 in default imprisonment for two years and allowed 12 months to pay. On the other charges she was placed on probation for a period of three years, with special conditions that she undergo medical, psychiatric and psychological treatment as authorised by her probation officer. She was ordered to pay compensation in the sum of $5,658.12.

It will be immediately obvious that most of the money the subject of the principal offence of defrauding the Commonwealth, with which the Court is now concerned, occurred after 8 August 1997. In other words, it would appear that while she was on probation and presumably undergoing psychiatric counselling with respect to her propensity to commit such offences, she was on a regular basis obtaining money from the Commonwealth to which she was not entitled.

The sentencing Judge, in the course of argument prior to imposing sentence, referred to the criminal history and said he "would not describe Ms Edwards as a criminal". I have some difficulty with that, given the extensive history and the degree of deception involved in the commission of these offences. It is then of significance that in the course of his actual sentencing remarks his Honour made no further reference to the criminal history. In my view he erred in that regard, particularly seeing that the criminal conduct continued unabated after probation had been imposed, including psychological counselling. That was no deterrent; the time had been reached when a custodial sentence was the only appropriate sentence to impose.

Before this Court, Mr Moynihan, who ably argued the case for the respondent, submitted that there were mitigating factors which the Court should take into account, particularly in view of the fact that this was an appeal by the Director of Public Prosecutions. It is true that the respondent is the mother of two children who are essentially dependent on her, and that is a relevant matter pursuant to section 16A(2)(p) of the Crimes Act.

It is also a fact that the sentence in question was imposed on 19 October 2000 and the respondent has been in the community since then. It appears from a report from probation officers, which was admitted into evidence before this Court, that she has responded reasonably satisfactorily to the probation imposed on 19 October.

The fact that she has responded well to the probation and the fact that she does ultimately have the responsibility of two children, does mean, in my view, that the sentence of imprisonment which ought to be imposed should be kept to the very minimum. Were it not for those considerations, then it is my view that her conduct would have justified the imposition of a heavier sentence than that which I propose should be imposed as a result of the appeal by the Director of Public Prosecutions.

Bearing in mind what I have said about the Social Security legislation, taking into account the fact that this was systematic defrauding of the Commonwealth, bearing in mind that the system depends upon honest representations being made by applicants and bearing in mind the respondent's criminal history, I am of the view that she should serve a term of imprisonment of six months.

The order that I would propose would let the head sentence of two and a half years stand. Then pursuant to section

20(1)(b) of the Crimes Act I would order that she be released after serving six months of that sentence on a recognisance to be of good behaviour for a period of three years with a security of $2,000. I would, in the circumstances, not impose probation as a condition of the recognisance. The order that the respondent should make reparation in the sum of $72,100.57 should stand.

(2) set aside that part of the sentence which immediately suspended the term of imprisonment on condition that the respondent enter into a recognisance and in lieu thereof order that the term be suspended after serving six months imprisonment upon the respondent entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of three years;

(3) further direct that the Legal Aid Office, Queensland, cause the effect of the sentence to be explained to the respondent.

THE PRESIDENT: I agree with the orders proposed by Justice of Appeal Williams. The respondent's behaviour occurred over two lengthy periods between 1988 to 1991 and 1996 to 2000. The total amount of money defrauded was $81,618.85. It involved a systematic defrauding of the Commonwealth, including the establishment of false identities and the production of false documents.

The respondent had repaid only $9,000 of the amount outstanding at the time of sentence. Since her sentence she has made repayments at a rate of $100 to $150 per fortnight. She has a significant criminal history and was on probation for offences of fraud at the time of these offences.

The respondent has had a sad life and it is to her credit that despite these considerable hardships and a serious motor vehicle accident she has retrained and at the time of sentence had gained steady employment. This has benefited not only her but her two children aged 14 and 10, and has assisted her in making partial repayments to the Commonwealth. Furthermore, she has been completing her probation satisfactorily since sentence.

In those circumstances it gives me no pleasure to now send the respondent to prison. This may, of course, jeopardise her rehabilitation.

Nevertheless, principles of general and individual deterrence in offences of this type require, that for offences of this type and the particular facts of this case, that a significant period of actual imprisonment be served.

As I have said, I agree with the orders proposed by Justice of Appeal Williams.

McPHERSON JA: I also agree with what has been said by Justice Williams and with the order that he proposed should be made.

THE PRESIDENT: The order is as outlined by Justice of Appeal Williams.

THE PRESIDENT: The Court additionally orders that a warrant issue for the arrest of the respondent to lie in the Registry for seven days.

R v Edwards; ex parte Cth Director of Public Prosecutions [2001] QCA 93

At a glance

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Before

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Judgment (44 paragraphs)

R v Edwards; ex parte Cth Director of Public Prosecutions [2001] QCA 93 (14 March 2001)

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