R v Hinton

IN THE COURT OF CRIMINAL APPEAL 60414/02

WOOD CJ at CL SULLY J HOWIE J

FRIDAY 4 OCTOBER 2002 R v Rebecca Valma HINTON Judgment 1 WOOD CJ at CL: I have read in draft the judgment of Howie J. I agree with the orders proposed, and with the reasons of his Honour. 2 SULLYJ: I agree with Howie J. 3 HOWIE J: On 17 May 2002 the respondent was convicted by Solomon DCJ of sixteen counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act (Cth). The maximum penalty prescribed in respect of each of those offences is 10 years imprisonment or a fine of $110,000 or both. In respect of each offence she was sentenced to imprisonment for two and a half years. His Honour then made an order that the respondent be released upon her entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act conditioned (1) that she be of good behaviour for 2½ years and (2) during that period that she place herself under the supervision and guidance of the Probation and Parole Service. His Honour also ordered that the respondent make reparation to the Commonwealth. 4 The Crown appeals against that sentence asserting that it is manifestly inadequate. In support of that overall submission the Crown relies upon what are said to be three particular errors made by the sentencing judge as follows:

1. his Honour erred in reaching his conclusion about "exceptional circumstances" when the respondent had not been cross-examined.

2. his Honour erred in his assessment of the objective seriousness of the offence;

3. his Honour erred in imposing a sentence which did not require the respondent to serve the period in custody. 5 The facts of the offences for which the respondent was sentenced are not in dispute and can be stated very briefly. The respondent was employed with Centrelink from 1992 as a customer service operator in the Youth Employment Services team. Between June 1999 and March 2000 she received either a Newstart Allowance or a Youth Allowance for each of sixteen identities that she had created for the purpose of defrauding the Commonwealth. In total over the nine-month period of the offences she was paid $78,593.77 to which she was not entitled. The proceeds were placed into three bank accounts in the name of either herself, her then de facto partner or her daughter. This criminal conduct came to an end only when her employer discovered the fraudulent entries. The respondent claimed that she spent the money gambling in order to escape an abusive relationship in which she found herself at the time. 6 The respondent pleaded guilty to each of the charges before a magistrate shortly after the brief of evidence was served upon her. She was committed to the District Court for sentence under the provisions of s 51A of the Justices Act and adhered to her pleas before Judge Solomon on 27 March 2002. On that date the material relied upon by the Crown was tendered. This included written submissions as to the principles to be applied in sentencing the respondent. The defence then tendered a psychological report, a number of testimonials and referred his Honour to some decisions of this Court. 7 The psychological report contained the following material. The respondent, who was aged 26 years, was of the Aboriginal race. She was brought up in a loving, stable environment in the western suburbs of Sydney. Her parents are both employed, her father is a Senior Youth Worker with a bail house and her mother is employed at the same Centrelink office where the respondent had been employed. They have offered her strong support. 8 The respondent entered into a relationship with a childhood friend when she was aged 20 years after renewing her acquaintance with him while visiting her brother in gaol. After he was released to parole, the respondent fell pregnant to him but before the birth of the child he was returned to custody. When he was next released the child, Shanarah, was aged thirteen months and the respondent and her partner began to live together. The respondent claims that he began to drink alcohol to excess and she suffered both physical and emotional abuse at his hands. She became depressed and commenced gambling in order to find release. In order to support her gambling she committed the frauds upon her employer. After she was charged with the offences, the relationship came to an end. 9 The respondent resided with her daughter, who was aged four years at the time of the report, in accommodation provided by the Department of Housing. The respondent has obtained some casual employment. She has little contact with the child's father. The respondent has ceased gambling since being charged and initially sought help from Gamblers Anonymous. She understands the connection between her relationship with her de facto, her gambling and the offending behaviour. 10 In reference to the respondents daughter, the psychologist reported:

Shanara[h] is now four years of age. [The respondent] feels that Shanara[h] has been affected by her own and [her de facto's] relationship as she was a witness to the verbal and physical abuse. She reports that Shanara[h] has behavioural problems for which [the respondent] has sought assistance at her local hospital. [The respondent] feels that Shanara[h]'s behavioural problems have worsened since her split from [her de facto]. Shanara[h]'s difficulties have been noted at pre-school, and result in situations such as during our meeting, where [the respondent] was called to take Shanara[h] home. She appears to be willing to do all she can to assist Shanara[h], and also has support from her extended family in this regard. 11 Having read the material tendered to him, his Honour indicated that he wished to know more about the situation with the respondent's daughter and specifically identified the evidence he wished to have before him on the adjourned hearing date. The matter was then adjourned to 17 May 2002. 12 On the adjourned date the defence tendered without objection a number of documents chiefly concerning the position of the respondent's child. In an affidavit, the respondent set out her relationship with her de facto much as she had told the psychologist. In respect of her daughter she stated that Shanarah had been attending a child-care centre daily since she was aged 4 months but in the last year had started to manifest behavioural problems that led to complaints from the centre. Her daughter was placed under the care of a child psychologist. The child suffers from rapid mood changes and is difficult to care for. She stated that there was no one to look after the child except her parents and they can only cope for a couple of hours at a time. 13 Statements from the respondent's parents confirmed both the nature of the respondent's relationship with her de facto and the behavioural difficulties with Shanarah that meant they were not able to care for her on a full-time basis. There were letters from the employers of the respondent's parents tendered indicating that her mother was sometimes required to travel to different parts of the country and that her father was on 24 hour call, seven days a week. 14 There was also material from the day-care centre, which Shanarah attended, confirming that there had been difficulties with the child and that she had for a period been suspended from the centre. There was also in evidence a report from a teacher at the centre indicating the nature of the behavioural problems that she had experienced with Shanarah. These included the child engaging in physical and verbal abuse against other children at the centre, attention seeking by outbursts of screaming, and intimidation of other children. The report also records the involvement of the respondent in attempting to address the behavioural problems of her daughter. 15 A child psychologist, Dr Kozlowska, at the Children's Hospital at Westmead prepared a report for the sentencing court in which she described Shanarah as presenting with severe behavioural problems and emotional issues. A neurological assessment of the child found that there was no underlying organic pathology. Dr Kozlowska described Shanarah's problem behaviour as including slapping, punching, kicking other children and preschool staff, spitting at other children and pulling their hair. She said that the child was unable to be settled when in a rage and required therapeutic restraint. Shanarah also demonstrated "repressed age-inappropriate behaviours such as clinging, refusal to separate from her mother, whining, whimpering, bossiness and difficulties with adults setting limits". 16 Dr Kozlowska recommended a treatment program for Shanarah including visits to the preschool centre by an occupational therapist, inpatient treatment to assist the respondent with parenting skills to manage her daughter's difficulties, and ongoing family outpatient management including the respondent, her daughter and possibly the grandparents. The treatment program was described as being intense and would require the respondent's participation. As to the possibility of a separation of the respondent from her daughter, Dr Kozlowska stated:

" A separation from [the respondent], Shanarah's primary attachment figure in the context of imprisonment is not in Shanarah's best interest, is likely to be experienced as traumatic, and will result in an escalation of distress and emotional and behavioural symptoms. Moreover, should Shanarah require foster placement, availability of placement will be limited in view of Shanarah's disturbed behaviour together with the significant distress she will experience if separated from her mother. Foster families are likely to find Shanarah's behaviour difficult to manage, be unable to settle her and breakdown resulting in multiple placements can be expected. Multiple placements, that it is, an inability to provide consistent caregivers will further aggravate Shanarah's difficulties. Dr Kozlowska concluded:

"From Shanarah's perspective, a good psychological outcome characterised by age (in)appropriate function can be expected if [the respondent] and Shanarah engage in appropriate therapeutic intervention as outlined in this report." 17 The Crown on this appeal does not contend that there was any specific error revealed in the remarks of the sentencing judge. It seems to me, with respect, that his Honour had a due appreciation of the seriousness of the offences committed by the respondent and he specifically stated that he was taking into consideration the need for general and individual deterrence in relation to such offences. He also indicated that he took into account that the respondent's conduct involved a "serious and substantial breach of trust". 18 His Honour concluded that he had no doubt that the destructive relationship between the respondent and her partner caused her to gain solace from gambling and that, had it not been for the nature of that relationship, the respondent would not have gambled as she did. Judge Solomon also concluded that the destructive relationship had affected the respondent's daughter. He quoted at length from the material to which I have referred which touched upon Shanarah's behaviour and how it might be treated. His Honour stated that he was satisfied that the child suffered from significant deep-seated psychological trauma and that she required ongoing treatment in the future. Further, Judge Solomon concluded that the respondent was the only person who was properly able to care for her daughter having regard to Shanarah's psychological condition. 19 Having referred to the material relating to the respondent and her daughter, his Honour stated:

" I have dealt with many cases over the years and I cannot think of a case which falls more within the arena of exceptional circumstances than this case. If this prisoner were to be imprisoned, I am satisfied that irreparable psychological harm would be occasioned to her daughter. Over two days I have had the benefit of observing Shanarah's behaviour in this court room and that behaviour reflects the observations by Dr Kozlowska, the child psychiatrist, Josephine Vannitamby, the school teacher and the grandparents of Shanarah."

His Honour's reference to "exceptional circumstances" is obviously a reference to the principle that, before the hardship occasioned by the offender's imprisonment on a third person can be taken into account, it must be exceptional; Edwards (1996) 90 A Crim R 510; Muanchukingham (1990) 52 A Crim R 354. 20 His Honour concluded that in light of the seriousness of the offences, the respondent should receive a prison sentence but that such a sentence should be suspended. His Honour then made the orders that I have indicated at the commencement of this judgment, imposing a sentence of imprisonment for two and a half years upon the respondent but then ordering her immediate release upon entering into a recognisance. 21 The first ground of appeal relied upon by the Crown asserts that his Honour erred in finding "exceptional circumstances" when the respondent had not been cross-examined. In the Crown's written submissions placed before this Court the heading under which this ground is argued is, "Failure to Allow Cross-Examination of the Respondent". The first paragraph under that heading is as follows:

"It is submitted that his Honour's question and subsequent ruling that he would not impose a custodial sentence effectively prevented the Crown from cross-examining the respondent. In that circumstance the trial was unfair." 22 This submission relates to that part of the proceedings on 17 May 2002 that followed the luncheon adjournment. Just prior to that adjournment and before tendering a large amount of defence material, including an affidavit by the respondent, the solicitor then appearing for her informed the sentencing judge that the Crown wished to cross-examine the respondent and that he would call her later. His Honour said that he would take a little while to read the material and confirmed with the Crown that she wished to cross-examine the respondent, the Crown answering, "Just briefly, your Honour". The adjournment was then taken. 23 On the resumption of the hearing, his Honour indicated that he had read the material tendered and the two decisions that had been handed up by the Crown. The following exchange then took place:

His Honour : ……I have reread the Crown submissions on sentence and I have read the statement of facts. Have you finished with your submissions, Madam Crown?

His Honour : I will indicate now, having read the material before me, that it is not my intention to impose a custodial sentence on the prisoner so perhaps you can tell your client. Thereafter, a further report was tendered and his Honour stated:

I haven't said that my sentencing options, having regard [to] the exceptional circumstances and exceptional problems your client has with her daughter, I think, are limited to a bond, a bond with supervision.

I have considered community service, but I think she is doing a community service looking after her child, and so they are my intentions, unless you want to address me further.

The solicitor for the respondent indicated he would not make any more submissions. His Honour then sought assistance from the Crown in relation to the orders he might make and the operation of the relevant provisions of the Commonwealth Crimes Act . 24 True it is that his Honour sentenced the respondent without giving the Crown the opportunity to cross-examine her, but that omission was clearly an oversight. However, when his Honour asked the Crown whether she had finished with her submissions, I would have thought that the parties could have anticipated that his Honour was then going to proceed to sentence. That is why his Honour asked whether the Crown had finished making submissions. There was no reason why the Crown's representative could not then have reminded his Honour that she still wished to cross-examine the respondent. If she had said so, I do not doubt that his Honour would have allowed her that opportunity. But, even accepting that some procedural irregularity occurred by his Honour's oversight and the Crown's diffidence, if not neglect, which effectively lost the Crown the opportunity to cross-examine the respondent, I find it difficult to believe that the sentencing proceedings so miscarried that this Court should interfere on that basis alone. 25 In any event, if this Court were to find that the proceedings had miscarried in this way, the appropriate response would be to remit the matter to the District Court for further hearing under s 12 of the Criminal Appeal Act. I do not believe that such a course is warranted. The fact that her daughter was suffering from behavioural and emotional problems and that they would be exacerbated by separation from her mother was not really put in dispute. If it were to be, then the Crown would have needed to do a great deal more than briefly cross-examine the respondent. 26 The second and third grounds relied upon by the Crown can be considered together: if his Honour erred in imposing a sentence which did not require the respondent to serve a period in custody it was because his Honour gave insufficient weight to the seriousness of the offence. This is because a finding that the effect on a third party of the imprisonment of an offender is so exceptional that it can be taken into account to reduce the otherwise appropriate sentence must depend upon an evaluation of the objective seriousness of the offence for which sentence is being passed. The more serious the offence, the less likely it is that the effect of imprisonment on a third person will be sufficiently exceptional so that regard might be taken of it. 27 There is no doubt in my mind that the offences committed by the respondent would normally require that a significant period of imprisonment be imposed by way of full-time custody notwithstanding the subjective features of the respondent herself. There was a relatively lengthy and sustained episode of serious criminal conduct requiring the imposition of condign punishment. This is particularly so because the respondent was an employee of the Commonwealth and, therefore, there was a significant breach of trust involved. In Delcaro (1989) 41 A Crim R 33 at 36 the following was stated:

In Luu (unreported, Court of Criminal Appeal, NSW, 7 December 1984) the then Chief Justice, Sir Laurence Street, said: "The Courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardships to persons whose need for benefit is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hands of the Courts." That decision has been approved on quite a number of occasions, and I mention specifically Perks (unreported, Court of Criminal Appeal, NSW, 8 May 1987) and Tipene (unreported, Court of Criminal Appeal, NSW, 7 May 1987). . It was held in that case that neither periodic detention nor community service would have been adequate to meet the seriousness of the offences for which the respondent had been charged. 28 The fact that the present offences might have been explained by the effect of an abusive relationship on the respondent would not have provided sufficient mitigation to permit a more lenient course being adopted than that required to denounce her conduct and act as a significant general deterrent. It is rarely the case that such offences will be explained by greed alone. Gambling that results in serious criminality can usually be found to have its genesis in some psychological disorder that is not of the offender's making. But when the resultant criminality is of a high order, as it was here, then little allowance can be made for such an explanation other than as it may impact upon the prospects of rehabilitation when the non-parole period or minimum period of imprisonment is being considered. 29 The significant attack by the Crown on the present sentence is that the total sentence was suspended. In aid of the submission that such a course resulted in manifest inadequacy, the Crown points to the fact that the respondent was suitable for periodic detention but his Honour did not consider that as an option. The Crown contends that to suspend the total sentence imposed paid insufficient regard to general deterrence even though his Honour expressly referred to that matter. The Crown is also critical, with some justification in my respectful opinion, of his Honour's statement that the respondent was already performing community service by looking after her daughter. 30 However, the question on this appeal is whether it was outside the proper exercise of his Honour's discretion to determine that the effect of imprisonment upon the respondent's daughter was such that in all the circumstances of the case it justified the highly unusual course of imposing a sentence which did not require the respondent to serve immediately a sentence of actual imprisonment of some form. 31 It is now clear that the reference in s 16A(2)(p) of the Crimes Act to the "probable effect that any sentence or order under consideration would have on any of the person's family or dependents" should be read as if it were proceeded by the words "in an exceptional case": R v Togias [2001] NSWCCA 522 where many of the relevant cases concerned with the effect on a child of a sentence of imprisonment imposed upon the mother are considered in the judgment of Grove J. But each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. It should be exmphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed. 32 Whether exceptional circumstances exist is a finding of fact and this Court is strictly curtailed in displacing a finding of fact by a sentencing judge with a finding of its own, especially where error which might infect that finding cannot be shown. Where there is no patent error, the Court can only intervene where it is satisfied that there is no basis upon which the finding could be made. I am not satisfied that it was not open to his Honour to reach the finding that he did. This was a case where there was reliable and undisputed evidence that there was, at the time of sentence, severe behavioural and emotional problems being experienced by the respondent's child and that the child's long-term psychological well being would be affected by the full-time imprisonment of the respondent, not just because the respondent would be separated from her (which itself would probably not have been sufficiently exceptional) but because the respondent was needed both to care for the child and to take an active part in the child's treatment. 33 However, the question that then arises is what should have been his Honour's response to that finding in light of the seriousness of the offences committed by the respondent and the importance of general deterrence in offences of this nature. In R v Zamagias [2002] NSWCCA 17, this Court was concerned with the appropriateness of a suspended sentence to act as effective punishment and reflect general deterrence. In my judgment, with which Hodgson JA and Levine J agreed, I stated:

32. Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. 34 In the present case the particular question is whether the suspended sentence was an adequate form of punishment and sufficiently reflected general deterrence notwithstanding the exceptional circumstances found by his Honour in respect of the situation of the respondent's child. The respondent was assessed as being suitable for periodic detention. His Honour gave no reasons for rejecting that sentencing option notwithstanding that it would have apparently permitted the respondent to participate in the proposed therapy for her child. No doubt his Honour was concerned that it would mean, at least for some period of the sentence, that the respondent would be separated from the child for two evenings each week. It may have imposed difficulties on the parents of the respondent but this question was not really investigated by his Honour. 35 I am persuaded that in this particular case a suspended sentence was inappropriate punishment to denounce the criminality of the respondent particularly in light of the period over which the offences were committed and the breach of trust involved. Although his Honour was justified by reason of the exceptional circumstances he found to avoid imposing a full-time custodial sentence as would normally be required, there had to be some form of actual imprisonment that the respondent was required to serve. The leniency involved in a suspended sentence could not in this case adequately reflect the objective seriousness of the offences committed or the need for general deterrence. 36 The Court has received an affidavit from the respondent in the event that it was necessary to re-sentence her. It reveals that Shanarah has been undergoing treatment and in response her behaviour has improved. She has returned to the day-care centre. She has also stayed with her grandparents on three occasions when she has stayed with them overnight. Repayments of about $50 per week are deducted from welfare payments the respondent has been receiving since she lost her job with Centrelink. 37 During the hearing of the appeal the Court requested that an updated report be made available indicating whether the respondent was suitable to serve a sentence by way of periodic detention. The Court reserved its decision so that a report could be prepared and made available to the Court with the consent of the parties. A report dated 26 September 2002 was subsequently sent to the Court indicating that the respondent is suitable to serve the sentence by way of periodic detention and that suitable arrangements have been put in place for the care of the child while the respondent is in custody. 38 It should be noted that, although it was open to his Honour to find the present to be a truly exceptional case, a finding to the contrary would not necessarily have been erroneous. Further, periodic detention should not normally be considered to be an appropriate sentence to meet the seriousness of offences such as those committed by the respondent. Nor should this decision be taken as indicating that the care of a child by a mother will generally be regarded as an exceptional circumstance permitting an otherwise appropriate sentence to be avoided. 39 I propose that the appeal be allowed and that the sentence imposed by Judge Solomon be quashed. In lieu the respondent be sentenced to 2 years 2 months imprisonment to date from 11 October 2002 and is to be released after serving 14 months of that sentence, that is on 10 December 2003 upon the respondent entering into a recognizance and upon her giving security in the sum of $1000 without surety. The recognizance is to be conditioned that the respondent be of good behaviour for the period of the recognizance and that she place herself under the supervision of the NSW Probation and Parole Service. The sentence is to be served by way of periodic detention. The respondent is to report to the Norma Parker Periodic Detention Centre on the date that the sentence commences.

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