R v Holdsworth [1993] QCA 242

1. He be of good behaviour for a period of three years;

2. He perform eighty hours of unpaid community service;

1. He report to an authorised Commission Officer at Brisbane within forty-eight hours;
2. He report to, and receive visits from, an authorised Commission Officer as directed by that officer;
3. He perform in a satisfactory manner for the number of hours specified in this order such community service as an authorised Commission Officer directs at such time as the authorised Commission Officer directs;
4. While performing that service he comply with every reasonable direction of a Supervisor;
5. He advise an authorised Commission Officer of every change of his place of residence and employment within two business days of that change; and

8. He comply with every reasonable direction of an authorised Commission Officer.er

REASONS FOR JUDGMENT - PINCUS J.A. AND THOMAS J.

This is an appeal by the Commonwealth Director of Public Prosecutions on the ground that the sentence was manifestly inadequate.

The respondent was sentenced in the District Court for defrauding the Health Insurance Commission over a nine month period between November 1991 and August 1992. The maximum penalty prescribed for this offence is 1,000 penalty units, or imprisonment for ten years, or both (Crimes Act s.29D).

The sentence actually imposed had three components, none of which was custodial -

(a) an order for release forthwith without passing sentence, upon the respondent giving security by recognisance in the sum of $2,000 conditioned that he be of good behaviour for five years (Crimes Act s.20(1));

(c) reparation to Health Insurance Commission of $5,685.45 (Crimes Act s.21B, the effect of which is to permit the Commonwealth to enter a civil judgment if so minded).

The circumstances show a sustained and serious case of fraud. The respondent started by obtaining receipts for medical consultations by means of paying personal cheques on an account that had been closed. He would use the receipt to make a claim upon Medicare, which accepted his receipts as evidence of payment and paid money to him. Having done this on 18 occasions, his activity became more serious. He started preparing his own receipts. Using his home computer he incorporated a doctor's name and a "provider number" onto a receipt. He obtained a genuine computer receipt from the doctor, and then fed its format and details into his home computer. From this standard document he generated 163 receipts and made claims for all of them. These receipts and claims were entirely false, no consultations having occurred for any of them. In all, he obtained $5,680.45 by this method. He desisted only when apprehended.

He made full admissions, conceding that when he ran short of money he would print a receipt, obtain the money and use it for sundry purposes. Many payments were absorbed on household expenses for him and his family, although some were absorbed by his alcohol problem. He was at all material times in receipt of social security payments.

Not much can be said in the respondent's favour in relation to the circumstances of the offence, and it was not disputed that there is a need for deterrent penalties that will discourage activity of this kind. The factors in the present case which are urged in support of a non-custodial penalty all depend upon his antecedents and the effect that a custodial sentence might have upon his family.

The respondent is a 40 year old married man with three children, aged 9, 4 and 2. He held employment at the Queen Victoria Hospital for ten years between 1980 and 1990, progressing from storeman to purchasing officer. He resigned and moved to Queensland for a variety of reasons, one of which was a medical condition suffered by his wife. Having sold up and moved to Queensland, he was not able to obtain further employment and he and his family became dependent upon social security.

In summary, the mitigating factors are his previous good character, his inability to obtain work, his early plea of guilty (leading to an ex officio indictment), his remorse, his willingness to pay restitution, and the probable adverse effect of imprisonment upon his family. It was further submitted that his shortage of money explains why he succumbed to temptation, but I do not think that any particular persuasion attaches to that submission.

The comparable sentences to which reference was made before the learned sentencing Judge and before this Court suggest that a sentence of nine months to twelve months' imprisonment is to be expected in cases of sustained fraud where the total amount obtained is in the general range of $5,000 - $8,000. There may of course be exceptions as each case has to be judged on its own circumstances. The only non-custodial order to which reference has been made is that of Robyn Ryan (Skoien D.C.J. 23rd August, 1985) where a mother of three young children had already sold the family house and made restitution before sentence. The learned sentencing Judge described her as having "extraordinary marital problems" including domination by her husband. Whatever these may have been, the actual effecting of full restitution in circumstances where severe hardship had been incurred in order to do so is sufficient to set it apart from the present matter, and it may perhaps be regarded as a special case.

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. In this context it is to be noted that in the pre-sentence report the respondent is described as having "attempted to objectify the offences and view them as victimless crimes on the basis that he never set out to hurt or disadvantage any particular individual or group". 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.

The learned sentencing Judge seems to have concentrated more upon the subjective difficulties of the respondent, and upon his antecedents, than upon the criminal side of the circumstances. No doubt his Honour was aware of the need for deterrence, but no mention was made of it in the fairly extensive sentencing remarks.

The sentence was inadequate in the circumstances. I have no doubt that if the matter were now at first instance a sentence containing an actual custodial component ought to be imposed. Such a sentence would be not less than the substituted sentence suggested by counsel for the appellant, namely twelve months' imprisonment, with release after three months.

The question is whether the circumstances which have been mentioned to the Court as occurring between the time of sentence and the hearing of the appeal make the substitution of such a sentence now inappropriate. Before mentioning these circumstances, it should be noted that in cases where postsentence information is properly receivable it is generally unacceptable it be presented by mere statement from the Bar table. Normally it should be presented by affidavit or be substantiated in some way that will enable the allegations to be checked by the Crown and if necessary, tested by the Court. In Crown appeals on sentence, post-sentence facts may be received for example if they tend to show that undue oppression may result from interference with arrangements that have been made in good faith in reliance upon the sentence that is under review. It is not uncommon when a probation order has been made to receive a report as to how the offender has responded to probation in the interim. However, such facts are not generally receivable by mere statement from the Bar table.

With this caveat, we shall in this instance, act on the information that has been supplied. The information is that the respondent has recently obtained a job. It is with a service station and is for 30 hours per week. It is said to be "permanent" but that should not be taken literally. In addition, we were told that his family still resides with him and that they have not gone to Melbourne as they had planned to do during the period of any imprisonment.

What effect should these factors have upon the way in which this Court should respond to the Director's appeal? There is a degree of oppression in all Crown appeals against sentence in that they subject the offender to an additional period of anxiety and an additional period of limbo during which he is uncertain of his future and may make arrangements which will be upset by a different sentence. Such appeals however are the only form of correction in the community's favour when the original sentencing discretion miscarries, and inconsistency may prevail unless errors are corrected.

The factors which have been mentioned do not in my view make it unjust that a custodial sentence be imposed at this stage. No undue delay has occurred between the passing of sentence and hearing of the appeal. The imposition of a custodial sentence will mean that plans that had already been made to meet the very real prospect of a prison sentence will have been postponed. It cannot be said that this is a weighty factor. It will also mean that the employment which the respondent obtained shortly before the hearing of the appeal will be lost, and that is unfortunate. However, the obtaining of employment shortly before a known sentencing process is a widely occurring phenomenon. It is a relevant consideration that always makes harder the task of the court in imposing a custodial term. It is however commonly outweighed by other factors such as the need for deterrence. It cannot be permitted to deflect a court from its duty if a custodial sentence is in all the circumstances the proper option.

In my opinion the appellant has demonstrated that the sentencing discretion in this case miscarried. The circumstances that have supervened are not of an unusual nature such as should dissuade the court from interfering with the sentence.

The appeal should be allowed and the sentence set aside and in its place there should be a sentence of twelve months' imprisonment with an order that the respondent be released upon his giving security by recognisance that he will be of good behaviour for two years after he has served three months; and a reparation order in the sum of $5,685.45 for payment to the Health Insurance Commission. These orders are made under s.20(1)(b) and s.21B(1) of the Crimes Act. Under s.16F(2) it is directed that the Public Defender cause to be explained to the respondent -

(a) that service of the sentence will entail a period of imprisonment equal to the pre-release period specified in the order, namely three months;

(b) that the condition of the order is that he be of good behaviour for two years;

(c) that if he fails to be of good behaviour for two years he may be proceeded against under s.20A of the Crimes Act and be summonsed or brought before a Magistrate to be dealt with according to law and that in such event the Magistrate may -

(i) revoke the order and deal with him for the offence in respect of which the order is made by ordering him to be imprisoned for that part of the sentence that he had not served at the time of his release; or

that any recognisance given in accordance with the order may be discharged or varied under s.20AA.

A bench warrant will issue in the event that the Director applies for one.