R v Hurst; ex parte Commonwealth DPP [2005] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION: R v Hurst; ex parte Commonwealth DPP [2005] QCA 25

PARTIES: R v HURST, Joe (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)

FILE NO/S: CA No 387 of 2004 DC No 2334 of 2004

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by Cth DPP

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 14 February 2005

DELIVERED AT: Brisbane

HEARING DATE: 14 February 2005

JUDGES: McMurdo P, Mackenzie J and Chesterman J Separate reasons for judgment for each member of the Court, each concurring as to the order made

ORDER: Appeal allowedVary the sentence imposed at first instance by deleting that part of the order that Mr Hurst be released forthwith and instead order that he be released after serving six months imprisonment otherwise confirm the sentence imposed belowOrder that a Bench Warrant be issued but to lie in the registry for seven days

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where respondent pleaded guilty by ex officio indictment to one count of defrauding the Commonwealth and one count of dishonestly obtaining financial advantage from the Commonwealth – where sentenced to three years imprisonment suspended forthwith under s 20(1)(b) Crimes Act 1914 (Cth) upon recognizance of $1000 on condition he remain of good behaviour for three years – where ordered to pay repatriation to the Commonwealth of $65,089.87 under s 21B Crimes Act 1941 (Cth) – where maximum penalty on each count 10 years imprisonment – where respondent suffered traumatic early life – where some minor and old criminal history – where expressed remorse – where made genuine effort to repay debt to Commonwealth – whether sentence manifestly inadequate / R v Holdsworth [1993] QCA 242; CA No 94 of 1993, 22 June 1993, considered R v Oag [1993] QCA 225; CA No 73 of 1993, 17 June 1993, considered R v White CA No 411 of 1986, 3 April 1987, considered R v Wright (1994) 74 A Crim R 152, considered

COUNSEL: M C Chowdury for the appellant S J Keim SC for the respondent

SOLICITORS: Commonwealth Director of Public Prosecutions for the appellant Ron Sherman for the respondent

THE PRESIDENT: Mr Hurst pleaded guilty on 4 October 2004, to one count of defrauding the Commonwealth between 31 January 1995 and 23 May 2001 and one count of dishonestly obtaining a financial advantage from the Commonwealth between 24 May 2001 and 21 January 2003. He was convicted and sentenced to three years imprisonment to be released forthwith, under s 20(1)(b)Crimes Act 1914 (Cth), upon entering into a recognizance in the sum of $1,000, on condition that he be of good behaviour for three years and was additionally ordered under s 21B Crimes Act 1914 (Cth) to pay reparation to the Commonwealth of $65,089.87. The maximum penalty on each count was 10 years imprisonment. The second offence simply reflects the necessary legislative changes occurring over that time period.

The appellant, the Commonwealth Director of Public Prosecutions, contends that the sentence is manifestly inadequate and that Mr Hurst should have been required to serve between nine and 12 months or at least six months of his sentence in actual custody before release and that too much weight was given by the learned primary judge to Mr Hurst's unfortunate early life circumstances. This submission is consistent with that made by the prosecutor at sentence. Mr Hurst claimed Jobsearch allowance from the Department of Social Security under the name Joseph Hrastnik and received payments from 13 December 1994 until 19 December 1995 when the benefit was changed to Newstart allowance. He then received Newstart allowance until 21 January 2003 when these offences were detected. Mr Hurst changed his name by deed poll from Joseph Hrastnik to Joe Hurst on 1 December 1994 but did not advise the Department of Social Security of his change of name. He commenced paid employment on 31 January 1995 as a subcontractor with a number of swimming pool companies under the names Joe Hurst, Joseph Hrastnik and in the business names of Ash Builders Pty Ltd and JH Pool & Spa Services. From January 1995 until January 2003 he lodged regular applications for payment forms with the Department, usually fortnightly, to claim the benefits. The forms covered 209 fortnights and in each form he either falsely stated he was not working or declared that he was working but understated the amount of his income from his employment so that between 31 January 1995 and 21 January 2003 he obtained $79,089.87 in benefits to which he was not entitled.

The offences were detected after information was received from a member of the public. This led Centrelink to inquire into Mr Hurst's entitlement to benefits. When he became aware of the investigation, he ceased to claim the benefits. He took part in a recorded interview with investigators on 29 August 2003 in the presence of his lawyers and made admissions. He said he was out of work for some of the time, he was getting out of a marriage and he was desperate and he apologised for his conduct. It seems he spent much of the money on his partner and in maintaining their lifestyle. By the time of the sentence, he had repaid $14,000, leaving $65,089.87 outstanding. We are told that he has now repaid about $20,000.

Mr Hurst is 60 years old and has some minor and old criminal history. In 1968, he was sentenced to six months suspended imprisonment and fined for forgery and uttering. The next month he was fined and ordered to pay $75.33 compensation and sentenced to six months suspended imprisonment with a condition that he be placed on probation for three years for another forgery and uttering. In 1970, he was charged with leaving his wife without support and ordered to pay maintenance for her and his two children, together with court costs. He has no subsequent criminal history and has never before been imprisoned. He has therefore not offended for 25 years before committing these serious offences.

It was common ground at sentence that neither Mr Hurst's change of name nor his original application for benefits was fraudulent; his offending behaviour did not commence until 31 January 1995 when he failed to declare his obtained employment to the Department.

He pleaded guilty by ex officio indictment and it was common ground that the plea was advised at a very early stage.

Mr Keim SC, who appeared for Mr Hurst on this appeal and at sentence, agrees that ordinarily a sentence of the kind requested by the appellant would have been appropriate but submits that the special circumstances here justify the leniency exercised by the learned trial judge in releasing

Mr Hurst on his own recognizance forthwith.

A report from psychologist Ms Leivesley was tendered on Mr Hurst's behalf at sentence. She assessed Mr Hurst on 28 April 2004. She recorded his remarkably traumatic life, facts which were unchallenged by the prosecution. When he was 16 years old, his parents told him that he had been adopted and he learned for the first time that he was born in Auschwitz Concentration Camp in 1944. He reports being told that his mother died in Auschwitz and his father, a partisan, was killed by the Nazis in World War II. His adoptive father was a violent and abusive alcoholic and womaniser although Mr Hurst had a close relationship with his adoptive mother. He grew up in Slovenia. As a young man, he lost more than one successful position of employment because of his refusal to join the Communist Party. When told of his conscription into the army, he fled into Austria and was pursued by the Slovenian border authorities. In Austria he was detained as an illegal immigrant and eventually migrated to Australia at 19. He spoke no English and had no friends or relatives here. Soon after his arrival he married a young Yugoslavian woman and they quickly had two sons, currently aged 39 and 37. After he and his first wife separated, he obtained custody of his eldest son. In about 1975 he remarried and had two daughters, both of whom are now in their 20s. That marriage too broke down and he now has very irregular contact with his daughters. He formed another relationship in Melbourne for a time but that too disintegrated. He describes his current relationship of five years duration as "pretty stable". He completed a three year apprenticeship as a fitter and turner. In recent years, he has worked in the swimming pool industry providing swimming pool designs and quotes. He changed his name after his divorce because his former wife was harassing him. He states that a custodial sentence would cause him to lose his present licence to build swimming pools. Ms Leivesley opined that Mr Hurst's early life experiences contributed to a strong need to provide for his family; feelings of mistrust and fear when dealing with government institutions; and a strong need to meet the financial demands of relationships. These factors contributed to his accepting benefits for which he was not eligible and predisposed him to an anxious and depressed mood so that it was difficult for him to cope with the stressors associated with a custodial sentence. She noted that he appeared genuinely remorseful and unlikely to re-offend.

At the time of sentence, Mr Hurst was involved in a number of ongoing swimming pool projects for which he was owed considerable sums of money and his payment for work done would be jeopardised were he to be imprisoned.

The learned primary judge concluded that the unique circumstances of this case placed it in the exceptional category where it was not necessary for Mr Hurst to serve a period of actual imprisonment. The issue here is whether that conclusion was open to his Honour.

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 similar offences. Those principles are well established: R v Wright (1994) 74 A Crim R 152 and R v Holdsworth CA No 94 of 1993, 22 June 1993.

The authorities nevertheless recognise that in exceptional circumstances a sentencing judge retains a discretion to impose a non custodial sentence and that the need for deterrence must be balanced against the personal mitigating factors of each case: compare R v White No 411 of 1986, 3 April 1987 and the less serious case of R v Oag CA No 73 of 1993, 17 June 1993.

Mr Hurst defrauded the Commonwealth of well over $70,000 over an eight year period in circumstances where he was not in grave financial need. There were many mitigating circumstances. He cooperated with the authorities, expressed remorse at his interview with police and pleaded guilty at an early stage by ex officio indictment. He made genuine efforts to repay some of his debt to the Commonwealth and the people of Australia. Because he has a promising business there are real prospects that if he were not sent to prison he would be able to continue repaying his debt. If he is sent to prison this will become more difficult. Courts must, however, be slow to reward the wealthy offender and to punish the indigent by allowing this factor alone to be decisive in imposing a non-custodial sentence. He is 60 years old and did not commit any offences for over 25 years before this offending behaviour. He has never before been sent to prison. Whilst these matters are important mitigating factors, they are certainly not in themselves sufficient to override the ordinary applicable principles to which I have referred, requiring a period of actual detention for such serious offending. The extraordinary circumstances of Mr Hurst's early life and the effect of them on his personality give some insight into how a successful 60 year old man came to commit these offences. Those facts were not put in issue at sentence, were accepted by the primary judge and it is not suggested that this Court should not also accept them. Even when those circumstances are combined with the other mitigating factors to which I have referred, they are not so compelling to outweigh the principles of general deterrence requiring a period of actual custody for such serious offending behaviour. The mitigating factors should have been reflected in an order for his early release after serving a period of actual detention, rather than an order for his release forthwith.

But for three factors which I will mention shortly, the punishment requested by the prosecutor at sentence for a period of actual imprisonment in the order of nine to 12 months before the order for release, would have been within range.

There are three reasons why it is now appropriate for this Court to order that he serve six months actual imprisonment before an order for release. First, this is appeal is brought by the Commonwealth DPP and well established principles require moderation when allowing such an appeal. Second, and connected with the first, Mr Hurst has suffered additional anxiety in that this appeal has been hanging over him for the past four months; third, during that period he has continued to pay reparation to the Commonwealth, showing some additional remorse for his shameful actions.

I would allow the appeal and vary the sentence imposed at first instance by deleting that part of the order that Mr Hurst be released forthwith and instead, order that he be released after serving six months imprisonment. I would otherwise confirm the sentence imposed below.

MACKENZIE J: I agree.

CHESTERMAN J: I agree.

THE PRESIDENT: The orders are as I have proposed. It will be necessary for me to order a bench warrant for his arrest. Mr Keim, would you like it to lie in the Registry for seven days?

MR KEIM: Yes, please, your Honour.

THE PRESIDENT: You would have no objection to that, Mr Chowdhury?

MR CHOWDHURY: No objection.

THE PRESIDENT: I order that a bench warrant issue for Mr Hurst's arrest, but that it lie in the Registry for seven days.