Court of Appeal (Qld)|2006-08-31|Before: McMurdo P, Jerrard JA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
McMurdo P, Jerrard JA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL
LAW – APPEAL
AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL
AND NEW TRIAL – APPEAL
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW – APPEALAND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEALAND NEW TRIAL – APPEALAGAINST SENTENCE – APPEALBY CONVICTED PERSONS – APPLICATIONSTO REDUCE SENTENCE – WHENREFUSED – GENERALLY– where applicant pleaded guilty to one count of defrauding theCommonwealth and one count of obtaining a financial advantageby deception– where applicant was sentenced to three years on each count to bereleased after eight months upon his givingsecurity by recognisance in the sumof $10,000 – where applicant was ordered to make reparation of $62,420.38to the Commonwealth– where applicant made dishonest statements toCentrelink during a continuous period of 8 years – where applicant was69years of age at the time of offending – where applicant had made effortsto repay some of the monies –– whether
actual custody is required
for general deterrence.
Crimes Act 1914 (Cth) s 16A
R v Holdsworth [1993] QCA 242
CA No 94 of 1993, 22 June 1993,
applied.
R v Hurst
ex parte Commonwealth DPP [2005] QCA 25
CA No 387 of
2004, 14 February 2005, applied
R v Wright [1994] QCA 16
(1994) 74 ACrimR 152,
cited
R v Carter [2005] QCA 402
CA No 257 of 2005,
3 November
2005, cited
Judgment (26 paragraphs)
[1]
Director of Public Prosecutions (Commonwealth) for the respondent
[2]
THE PRESIDENT: Justice Atkinson will deliver her reasons first.
[3]
ATKINSON J: This is an application for leave to appeal against sentence by Barry Grice.
[4]
The applicant was convicted on his own plea of guilty on one count of defrauding the Commonwealth and one count of obtaining a financial advantage by deception. The ground of appeal was that the sentence was manifestly excessive.
[5]
In relation to each count the applicant was sentenced to imprisonment for three years to be released after serving eight months upon his giving security by recognisance in the sum of $10,000, conditioned that he be of good behaviour for three years. Each sentence of imprisonment was to be served concurrently with the other. He was ordered to make reparation in the sum of $62,420.38 to the Commonwealth.
[6]
Mr Grice appeared for himself on the hearing of this application.
[7]
Count 1, defrauding the Commonwealth, related to a period between 17 August 1996 and 23 May 2001; the second count on the indictment related to a period from 24 May 2001 to 2 July 2004, so the period of offending involved was some eight years during which period the applicant received social security payments without advising Centrelink that he was married to Diana Grice and failing to advise of her income from employment. The total amount of alleged overpayment was $68,355.05.
[8]
During the period of the charges he received Newstart Allowance payments between 8 August 1996 and 26 December 1996; mature age allowance from 2 January 1997 to 23 July 1998; and from 6 August 1998 to 15 October 2001, and he was then in receipt of the aged pension from 16 October 2001 until 14 August 2004. During that period he received total payments of $92,067.13. Had he advised Centrelink of his true circumstances he would have received $23,712.08. The overpayment was, therefore, $68,355.05. During the period of the offending the applicant received at least 26 separate notices informing him of his obligation to notify Centrelink if there was any change in his circumstances, including about his marital status.
[9]
The applicant married his present wife who was then called Diana Singh Daljit Cor on 12 June 1994. She applied for a permanent residency spouse visa on 15 February 2001 on the basis of her marriage to the applicant, having previously been on a bridging visa or present in Australia illegally without a visa. She was subsequently granted a bridging visa with no right to work. Mrs Grice worked at the Mater Private Hospital from 6 August 1996 on a part-time basis. Between 6 August 1996 and 13 August 2004 she earned a total gross income of $240,960.86.
[10]
In his application for Commonwealth benefits on 2 April 1996 the applicant indicated that he was divorced and paying board to a person named Pero Singh. In his claim for a mature age allowance the applicant claimed that he was sharing accommodation with his landlady, Diane Cor Singh, and that he had commenced sharing accommodation with her on 23 November 1996.
[11]
On 13 October 2001 the applicant submitted an income and asset review transfer to aged pension form where he ticked "no" in response to the question, "Are you and/or your partner currently employed?". On 18 February 2003 he submitted a rent certificate document to Centrelink in which he indicated that he shared his residence with his landlord and also his landlord's son.
[12]
Centrelink received information from the public and commenced an investigation in January 2003. The sentencing judge also accepted that the applicant himself also gave a tip-off to Centrelink in a false name about what he was doing. As a result of the investigation, the applicant's payments were suspended from 2 July 2004. During the investigation period, on 14 October 2003, Centrelink required him to complete a document with regard to his living arrangements. He declared that he had shared his residence with a person named as Diana Singh who had been his landlady since 20 October 1999. He indicated that he had never been legally married to any person listed on the form.
[13]
In a form completed by him on 13 April 2004 the applicant finally admitted that he was a partner to Diana Singh and that he had lived with her at previous addresses between 2001 and 2003, and that friends and associates considered their relationship to be that of a married couple. He failed to answer a question of whether or not he had ever been legally married or lived as if married to Diana Singh, and to the question "Have you ever claimed you were married or a de facto couple for any purpose?" he replied in the negative. He did, however, admit on that form that his partner was employed at the Mater Private Hospital.
[14]
After his detection the applicant started making repayments of $113 per fortnight and had, to the time of sentence, repaid $5,934.67, leaving an outstanding balance of $62,420.38. He pleaded guilty at an early stage and made admissions during his interview with Commonwealth authorities once these matters came to their attention.
[15]
The applicant was born on 16 October 1936 and so was 69 years old at the time he was sentenced. He had no previous convictions and no criminal history. He was married and had no dependent children. He retired in 1996 at the age of 60 having had a long and varied work history.
[16]
Many of his personal antecedents were set out in a report by a psychologist, Ronald Frey, which was tendered on his sentence. The applicant apparently enjoys inventing and has been involved in a number of projects of general benefit to the community. At the time of his imprisonment he was apparently involved in a project to produce cheap earthquake- and cyclone-proof housing for Papua New Guinea. In the grounds of appeal the applicant refers to his desire to be involved in this apparently worthwhile project. This was supported by a letter from the manager of Strongbond Engineering, the company involved, which was tendered on his sentence.
[17]
He is currently married to his third wife. His first two marriages broke down and he was apparently left without any property after the breakdown of those relationships. He has adult children and stepchildren. His current wife was a Malaysian citizen who came to Australia in 1992 with her 11-year-old son. She was apparently fleeing domestic violence when she met the applicant. They were married on 12 June 1994. She was afraid that if he revealed his marital status and that she was working without a visa she would face deportation.
[18]
The money received from Centrelink was spent on ordinary household and living expenses and rent and $10,000 was apparently paid to a migration agent to assist in obtaining a visa for his wife in 2001. His wife controlled their finances.
[19]
It was alleged on sentence and apparently accepted by the sentencing judge that the migration agent, who has since died, advised the applicant not to disclose his marriage or that his wife was working or she would face immediate deportation.
[20]
This was not a sophisticated fraud. The applicant did not appear to be motivated by excessive greed. It was a case where he was dishonest about his circumstances rather than a case where he deliberately set out to perpetrate a massive fraud against the Commonwealth.
[21]
It is, however, the case that deterrence in such matters generally requires a custodial punishment: see R v Holdsworth [1993] QCA 242 per Pincus JA and Thomas J, at 4. A recent expression of that principle is found in R v Hurst; ex parte Commonwealth DPP [2005] QCA 25 at 7-8 (per McMurdo P):
[22]
"The honesty of those claiming under the welfare system is essential to its successful operation. Offences like these are hard to detect. They lead to a public loss of confidence in the integrity and worth of the social security system and create a risk of demonising the genuine and needy in our society who require such assistance from time to time. Those like Mr Hurst, who intentionally abuse the system unlawfully obtaining benefits of more than $70,000 over eight years, must expect to be sent to prison for a substantial time as a deterrent not just to them but to others who might be tempted to commit some more offences. Those principles are well established: R v Wright [1994] QCA 16; (1994) 74 A Crim R 152 and R v Holdsworth CA No 94 of 1993, 22 June 1993."
The President observed that an order requiring Hurst to serve nine to 12 months of the three years' imprisonment to which he was sentenced would have been within range. That was a case not unlike the present in the amount of money involved, the length of time over which the offending took place, the type of dishonesty involved and with many similar mitigating factors.
[25]
The learned sentencing judge in this case took account of all the relevant factors found in s 16A of the Crimes Act1914 (Cth) in determining the appropriate head sentence and the appropriate ameliorating order. In those circumstances it could not be said that the sentence was manifestly excessive and so leave to appeal against sentence must be refused.
[26]
THE PRESIDENT: The order is the application is refused. Nevertheless we wish you well in your future housing project and hope it goes well for you and for the community.