//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] QCA 214
respondent. The application to adduce further evidence was refused, and the application for leave to appeal against sentence was refused.
The Court of Appeal refused Ibbetson’s request to add an old hospital discharge summary to the appeal and refused leave to appeal her sentence. The summary was available at the sentencing hearing and did not add material information likely to change the sentence. COVID-19 restrictions arose after sentence and were not part of the appeal court’s review of the original sentence. The Court also found that comparisons with other cases did not show that the sentence was outside the range open to the sentencing judge. The sentence and release arrangement had been the subject of the applicant’s own counsel’s submissions at sentencing.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,051 words · generated 02/10/2026
In R v Ibbetson [2020] QCA 214, the Queensland Court of Appeal considered an application for leave to appeal a Commonwealth sentence and a related request to adduce further evidence. Lyons SJA gave the reasons for the orders. Sofronoff P and Philippides JA agreed with those reasons ([1]–[2]).
No linked legislation citations have been extracted yet.
Ibbetson pleaded guilty to nine counts of obtaining a financial advantage by deception under s 134.2(1) of the Criminal Code Act 1995 (Cth), and two counts of attempting to obtain a financial advantage by deception under ss 11.1 and 134.2(1). The offending occurred between 17 March 2014 and 12 April 2015 ([3]).
She operated a mobile phone business through Coolum Telecoms Pty Ltd. The company was required to lodge business activity statements with the ATO. After lodging outstanding returns in October 2013, Ibbetson amended three of those returns and lodged eight further returns between March 2014 and April 2015. The returns included false and exaggerated figures for GST on purchases and refunds said to be owing ([7]–[8]). Nine returns resulted in the ATO paying $200,553 beyond the company’s entitlement. Two later returns, the basis of the attempt counts, claimed a further $55,413 ([9]).
At sentence, the District Court imposed two-and-a-half years’ imprisonment on each count, concurrently. Ibbetson was to be released after serving ten months on a $1,000 recognizance to be of good behaviour for two-and-a-half years. The judge also ordered reparation of $200,553. Ibbetson had no criminal history ([4], [17]).
Her appeal grounds included that the sentence was manifestly excessive and that relevant mental health information had not been properly presented. She also raised the effect of imprisonment on her daughter, COVID-19 restrictions on prison visits, and an asserted late change in her barrister’s advice about the likely sentence ([5]–[6]). The Court refused both the application for further evidence and leave to appeal ([40]).
The mental health evidence application concerned a hospital discharge summary from December 2017. The Court noted that the document had been available at the sentencing hearing and was approximately two years and four months old by then ([22], [24]). It described a particular episode involving deteriorating mood and suicidal ideation, and recorded pathological gambling as the primary diagnosis and a moderate depressive episode as the secondary diagnosis. It also said Ibbetson had resisted follow-up by the hospital’s acute mental health team and intended to continue treatment with a private psychiatrist ([24]).
The sentencing judge already had a report from that psychiatrist. It recorded gambling addiction and adjustment disorder with mixed anxiety and depressive symptoms, but also said there was no known medical illness explaining the conduct and no prior psychiatric history ([25]). The Court considered that the sentencing judge had taken the available information into account favourably, including by recognising steps towards rehabilitation and insight ([26]). It concluded that the discharge summary added no significant information and was incapable of affecting the sentence. Its absence therefore could not occasion a miscarriage of justice ([27]).
The pandemic-related point was different in kind. Stage 3 prison restrictions and the resulting limits on personal visits began after the sentence had been imposed. The Court said its function was to consider the sentence imposed by the primary judge, not later events ([28]). It also noted that no evidence had been adduced about the actual effect on Ibbetson’s daughter. The general restrictions affected prisoners and families beyond this case ([28]–[30]). The Court therefore treated those circumstances as irrelevant to whether the original sentence was erroneous.
The Court addressed family hardship as a sentencing consideration, referring to R v Huston, Fox and Henke; Ex parte Director of Public Prosecutions (Cth). It stated that hardship to family members ordinarily does not reduce an otherwise appropriate sentence unless circumstances are highly exceptional or refusal would effectively be inhuman ([29]). On the evidence and timing in this case, that threshold was not met.
The central appellate issue was manifest excess. The Court restated the test: the sentence must be so extreme or severe that its severity itself demonstrates some error in the sentencing judge’s reasoning. It is insufficient to show that a lesser sentence could have been imposed, or merely to point to similar cases with lesser sentences ([34]). Applying that test, the Court considered the offending’s duration, repetition, amounts involved, the sentencing judge’s remarks and the comparative authorities.
The offending continued for 13 months and involved repeated false returns. The sentencing judge recognised the substantial amount obtained, the persistence of the conduct and the importance of deterrence. He also recognised that imprisonment was a last resort under Commonwealth sentencing legislation, considered the applicant’s personal circumstances and gambling addiction, and addressed rehabilitation and family circumstances ([18]–[21]). The sentence imposed was, in fact, the sentence advanced by Ibbetson’s counsel at the hearing ([16]–[17]).
The Court distinguished the authorities Ibbetson relied on. R v Karam was a single-judge Victorian County Court decision concerning different offences and circumstances, including a finding that the offender was vulnerable, unsophisticated and directed by others. It also involved systemic delay ([35]). Police v Miller involved restitution by the time of sentence and other distinguishing personal and factual circumstances; its head sentence did not support Ibbetson’s manifest-excess argument ([36]). By contrast, the Court considered De Hollander v The Queen supportive of the sentence imposed, while recognising that the depression in that case was more significant than Ibbetson’s ([37]).
The judgment applies, rather than announces a new general test for sentence appeals. Its formulation at [34] requires an applicant alleging manifest excess to show that the sentence was so severe that it reveals error, and was not a sentence open to the sentencing judge. A lesser sentence in another case does not establish that proposition by itself. The Court relied on R v Peterson for that principle ([34]).
On further evidence, the Court described its power to receive evidence not before the sentencing judge where that evidence indicates that another sentence would have been warranted ([23]). It considered the respondent’s arguments about finality and the need to avoid a miscarriage of justice, then applied those considerations to the discharge summary. The decision is fact-specific: the document was available earlier, dated, and not materially different from the existing sentencing material ([23]–[27]).
The judgment also treats the appeal court’s task as review of the sentence imposed, rather than adjustment for later events. The COVID-19 restrictions commenced after the sentence, so their asserted consequences could not establish that the sentencing judge erred on 16 March 2020 ([28]–[30]). This reasoning does not determine how any later, separate legal process concerning prison conditions might operate; that question was not before the Court.
For federal sentencing, the Court noted that the sentencing judge had considered relevant principles under s 16A(2) of the Crimes Act 1914 (Cth) ([18], [21]). It also accepted the relevance of the approach in De Hollander to release after a specified period under s 20(1)(b). The Court reproduced principles concerning the role of a non-parole period and applied them by analogy to release of a federal offender under that provision ([38]). The decision did not alter those principles; it used them to assess the release arrangement in this case.
At [27], Lyons SJA said the additional material was “incapable of affecting the sentence passed”. In plain English, the Court was not satisfied that adding the hospital summary could have made a material difference to the sentence. The conclusion rested on its age, its limited additional content and the mental health information already before the sentencing judge ([24]–[27]).
At [28], the Court said that circumstances arising after sentence were not relevant to considering the merits of the appeal. This explains why later prison visitation restrictions could not show that the March sentence was wrong when imposed. The Court also noted that the restrictions were general and that there was no evidence about their specific effect on the applicant’s daughter ([28]–[30]).
At [34], the Court stated that it was not enough to identify similar cases in which a lesser sentence had been imposed. In plain English, sentencing comparisons can inform analysis, but they do not independently prove that the sentence under appeal was outside the lawful range. The applicant had to establish the required appellate error, not simply a difference in outcomes.
At [39], the Court concluded that the applicant had not established that the sentence was manifestly excessive. This conclusion followed its consideration of the sentence’s factual basis, the sentencing remarks, counsel’s submissions and the authorities ([16]–[21], [32]–[38]).
The decision is relevant to sentence appeals where an applicant relies on other cases to argue that their sentence is excessive. Its central caution is that comparison alone is not enough. The assessment in Ibbetson considered the number of counts, duration and persistence of the offending, amount obtained or sought, personal circumstances, mitigation, sentencing submissions and applicable appellate authority ([3]–[4], [16]–[21], [34]–[39]).
It is also relevant where a party seeks to introduce evidence that was available at the sentencing hearing. The Court examined whether the new document offered information that was genuinely new and whether it could have affected the sentence. Here, the proposed hospital summary was old, available earlier, and did not materially add to the evidence already considered ([22]–[27]). The decision does not mean that all previously available evidence must be excluded; it explains why this particular evidence did not justify admission.
The judgment may also be relevant where an appeal ground depends on developments after sentence. The Court treated later COVID-19 restrictions as outside its review of the original sentence ([28]–[30]). It distinguished those later events from matters that were before, or should have been before, the sentencing judge.
Finally, it addresses family hardship claims in sentencing. The Court referred to a high threshold for hardship to affect an otherwise appropriate sentence and found that the asserted circumstances here did not meet it ([29]). The judgment’s application depended in part on the absence of evidence about the daughter’s actual experience and on the general nature and post-sentence timing of the restrictions ([28]–[30]).
The judgment supplied here contains no decisions issued after R v Ibbetson and therefore does not establish how later courts have treated it. It would not be grounded in this source to claim that later courts have followed, distinguished, or otherwise applied its reasoning.
The judgment itself discusses earlier authorities. It considers Acosta, Massey and Melrose as sentencing comparisons ([13]–[15]); applies Huston, Fox and Henke to family hardship ([29]); distinguishes Karam and considers Police v Miller ([35]–[36]); and treats De Hollander as supporting the sentence and release arrangement ([37]–[38]). Those are the relationships described in this judgment, not evidence of later treatment of Ibbetson.
The judgment does not set out a comprehensive test for every application to adduce further evidence on sentence appeal. It states the relevant power and evaluates the particular discharge summary, which was available earlier and was regarded as incapable of affecting the sentence ([23]–[27]). Other cases involving genuinely new, current or materially different evidence are not resolved by this decision.
Nor does the Court determine how circumstances arising after sentencing might be considered in a different procedural setting. It says that later events were not relevant to the merits of this sentence appeal ([28]–[30]); it does not address any separate legal question about prison conditions or later applications.
The judgment also does not prescribe a formula for comparing sentences across cases. It rejects the proposition that a lesser sentence in a similar case, without more, establishes manifest excess ([34]). The comparison in this case remained contextual, involving the nature of each offence, the offenders’ circumstances, restitution, delay and other distinguishing features ([13]–[15], [35]–[38]).
Finally, the decision does not quantify how much weight each sentencing factor received. It records that the judge considered deterrence, the offending’s persistence and amount, the applicant’s circumstances, rehabilitation and family situation ([18]–[21]). Its conclusion is that the sentence was not shown to be manifestly excessive on the total material, rather than that any single factor determined the result ([37]–[39]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Ibbetson [2020] QCA 214
PARTIES: R / v / IBBETSON, Justine Claire / (applicant)
FILE NO/S: CA No 89 of 2020 / DC No 105 of 2019
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Maroochydore – Date of Sentence: 16 March 2020 (Cash QC DCJ)
DELIVERED ON: 2 October 2020
DELIVERED AT: Brisbane
HEARING DATE: 18 August 2020
JUDGES: Sofronoff P and Philippides JA and Lyons SJA
ORDERS: The application to adduce further evidence is refused.The application for leave to appeal against sentence is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts of obtaining a financial advantage by deception and two counts of attempting to obtain a financial advantage by deception – where she was sentenced to two-and-a-half years’ imprisonment to be released after serving ten months on a $1,000 recognizance to be of good behaviour for a period of two-and-a-half years – where reparation in the sum of $200,553 was also ordered – where the applicant had no criminal history at the time of her conviction – where the applicant seeks leave to appeal her sentence on the basis that the sentence is manifestly excessive and that relevant material in relation to the state of her mental health was not properly placed before the sentencing judge – where the applicant also raises a number of other matters including a contention that she was prejudiced by a late change in advice from her barrister as to the likely sentence which might be passed, and that the learned sentencing judge did not take into account the effect of her incarceration on her daughter and the impact of COVID-19 on her in custody – whether the court should accept new evidence from the applicant concerning her mental health conditions – whether that material was available at the time of sentence and whether it would have materially affected the sentence imposed – whether the decisions relied upon at first instance are distinguishable from the applicant’s case – whether the sentence imposed was manifestly excessive / Crimes Act 1914 (Cth), s 16A(2) / Criminal Code Act 1995 (Cth), s 11.1, s 134.2(1) / Acosta v The Queen [2015] VSCA 94, considered / De Hollander v The Queen [2012] WASCA 127, applied / R v Huston, Fox and Henke; Ex parte Director of Public Prosections (Cth) (2011) 219 A Crim R 209; [2011] QCA 350, applied / R v Massey [2015] QCA 254, considered / R v Melrose [2016] QCA 202, considered / R v Karam [2020] VCC 496, considered / Police v Miller (Unreported, Brisbane Magistrates Court, 1 May 2020), considered
COUNSEL: The applicant appeared on her own behalf / W S Ferguson for the respondent
SOLICITORS: The applicant appeared on her own behalf / Director of Public Prosecutions (Commonwealth) for the respondent
SOFRONOFF P: I agree with Lyons SJA.
PHILIPPIDES JA: I agree with the orders proposed by Lyons SJA for the reasons given by her Honour.
LYONS SJA: On 16 March 2020, the applicant pleaded guilty to an eleven count indictment charging her with nine counts of obtaining a financial advantage by deception pursuant to s 134.2(1) of the Criminal Code Act 1995 (Cth) (the Code) and two counts of attempting to obtain a financial advantage by deception pursuant to ss 11.1 and 134.2(1) of the Code. All of the offences had been committed in the 13 month period between 17 March 2014 and 12 April 2015.
The applicant was sentenced to two-and-a-half years’ imprisonment to be released after serving ten months on a $1,000 recognizance to be of good behaviour for a period of two-and-a-half years. Reparation in the sum of $200,553 was also ordered. The applicant had no criminal history at the time of her conviction.
She now seeks leave to appeal that sentence on the basis that the sentence is manifestly excessive and argues that relevant material in relation to the state of her mental health was not properly placed before the sentencing judge.
The applicant is self-represented and in addition to that major ground she also raises a number of other matters in her outline of submissions. These include a contention that she was prejudiced by a late change in advice from her barrister as to the likely sentence which might be passed. She also argues that the effect of her incarceration on her daughter and the impact of COVID-19 on her in custody have not been taken into account.
Factual Background to the Sentences
The applicant operated a mobile phone store in Coolum which sold mobile phone plans and handsets. She was the sole director and joint shareholder of Coolum Telecoms Pty Ltd (Coolum) which traded as One Zero Coolum (Business). Coolum held an ABN and was registered for GST. The applicant’s Business sold Telstra mobile phones under a sub-dealership agreement with Vita Pty Ltd (Vita) whereby it would purchase mobile phones from Telstra and for each mobile phone that it sold, Telstra would pay Vita for both the cost of the phone and commission for the plan. The Business would then claim against Vita for reimbursement of the cost of the phone and for the commission, of which Vita retained a portion. Coolum was required to submit a business activity statement (BAS) to the Australian Taxation Office (ATO) on a quarterly basis.
In August 2013, the ATO identified that Coolum had only lodged one BAS in the period between April 2011 and June 2013. The applicant subsequently provided the figures and lodged the outstanding returns in October 2013. That resulted in some refunds being paid to Coolum. Between March 2014 and April 2015 however, the applicant amended three BAS returns that she had lodged in October 2013 and electronically lodged eight further BAS returns. All of the returns included false and exaggerated figures for GST on purchases and refunds said to be owed.
The lodgement of nine of these 11 returns caused the ATO to pay Coolum $200,553 in excess of its entitlement. The last two returns lodged in early 2015, which comprise the two attempt counts, claimed an amount of $55,413 in refunds.
The ATO commenced an investigation in July 2016 during which the applicant claimed the errors were due to her accounting software. Whilst the applicant had been asked on 2 March 2017 to participate in an interview with the ATO, she had not taken advantage of the offer. At the time of sentence, no restitution had been made.
The Sentencing Hearing
At sentence, the Commonwealth prosecutor noted that the applicant’s only cooperation with the administration of justice was her guilty plea, given she had declined the opportunity to participate in an interview. Whilst there had been a registry committal on 30 October 2018 and an indictment presentation on 16 March 2019, there had been some delay as the matter had taken a year to come to sentence due to issues in relation to the applicant arranging legal representation. The prosecutor outlined the facts whereby the applicant had dishonestly obtained $200,553 and attempted to obtain a further $55,413 from the ATO over a 13 month period by lodging BAS returns on behalf of Coolum. On each of the statements that the applicant lodged for the ten BAS periods, there was false information which resulted in her receiving refunds to which neither she nor Coolum were entitled. Each amount was deposited into her business account to which she was a signatory. Counts 8 to 11 were committed after the commencement of the audit into her Business.
The prosecutor submitted that deterrence was a relevant factor, particularly given the impact which fraud has on the wider community and the fact that the BAS system relies on the honesty of those who participate in it. It was submitted that a deterrent sentence should be imposed so that business owners are deterred from inflating the figures they include on their BAS returns to fraudulently obtain GST refunds. Furthermore, it was argued that this was a course of conduct which was systematic and deliberate which resulted in a loss to the Commonwealth in excess of $200,000 where there had been no offer of reparation in relation to any aspect of the fraud.
A number of decisions were relied on by the prosecutor at sentence. The decision of Acosta v The Queen1 involved the lodgement of income tax returns containing false information. In that case, the applicant received $33,181.40 from the ATO and attempted to obtain a further $56,601.15. The head sentence was an effective head sentence of two years’ imprisonment with release on recognisance after six months. Whilst the applicant there had a criminal history, it post-dated his offending. He had also pleaded guilty at the earliest opportunity and had paid the money back by the time of sentence. A significantly lesser amount was involved and the applicant there had good prospects of rehabilitation.
The decision of R v Massey2 involved an undischarged bankrupt lodging 25 BAS claims with the ATO, where an amount of $257,655.45 was claimed using false invoices with an amount of $141,048.22 actually paid over a six month period. Whilst the applicant there had a criminal history, it was referred to as minor. In addition, he was extremely unwell and suffered from psychiatric problems at the time of offending. He was sentenced to three-and-a-half years’ imprisonment with release on recognisance after 14 months. Whilst it was a late plea, this Court held that the sentencing judge had not overlooked relevant factors including his health problems in imposing the sentence, and the sentence was not considered to be manifestly excessive.
“While the sentence imposed upon the applicant was greater than that in Massey, there were a number of distinguishing factors and, in some respects, the offending could be considered more serious. Nor do any of the other comparatives outlined above demonstrate that the sentence imposed was manifestly excessive, even when regard is had to the matter of delay. In Massey, McMurdo P observed that, unlike the position when sentencing for state offences, more commonly when sentencing federal offenders release dates are set to recognise mitigating factors at between the half to two thirds point of the sentence. As to the recognition of the effect of delay, Holmes JA in R v Cox; R v Cuffe; R v Morrison reduced the sentence imposed on two of the offenders by one sixth. Both of these authorities were referred to before the sentencing judge”.5
The Sentence Imposed
The sentence that was ultimately imposed was in fact a sentence of two-and-a-half years on each count, to be served concurrently with a parole release date set after ten months upon giving security by recognizance of $1,000 conditioned upon good behaviour for two-and-a-half years. It must be noted therefore that the sentence imposed was in fact the sentence that was submitted for by the applicant’s counsel at trial.
An analysis of the learned sentencing judge’s sentencing remarks clearly indicates that he took into account the relevant principles as he was required to do pursuant to s 16A(2) of the Crimes Act 1914 (Cth). In imposing the sentence that he did, the sentencing judge stated that whilst the matter had proceeded relatively efficiently, the offences had been committed over a substantial period of time and that there was an element of repetition or persistence in the applicant’s behaviour. He also noted that the amount of money she obtained was substantial. His Honour recognised that whilst deterrence was important, imprisonment was a sentence of last resort under Commonwealth sentencing legislation.
The sentencing judge noted that the applicant’s personal circumstances were such that there were no outstanding features in her background which would explain her behaviour. He noted that when she left school, she had worked for Telstra and that had led to her ultimately taking up the business of selling mobile phones. Whilst he considered that the applicant found herself to have a reliance on using poker machines which had resulted in a substantial gambling addiction, that fact could not operate as an excuse for what she did given the serious nature of the offending.
The sentencing judge also acknowledged that she had a 19 year old daughter who was supportive of her, and recognised that partly as a result of her offending, her long-term marriage had broken down and she had resorted to excessive alcohol consumption. The sentencing judge also specifically recognised that the applicant had taken steps towards rehabilitation and that she had been to a number of doctors and a psychiatrist and had undertaken some counselling with Relationships Australia. He considered that that meant she had insight into her offending and that she had done something about making sure she did not find herself in a similar position again.
In imposing the sentence his Honour stated:
“Having regard to the cases to which I have been referred and as well having regard to the matters set out in section 16A of the Crimes Act, it is my view that imprisonment is the only appropriate sentence to impose today, but I will impose a sentence which is, in my view, the shortest sentence that is appropriate to reflect the need for deterrence but to also see you released from custody in the shortest amount of time that I think could be considered right so that you can try and get on with your life. The effect of the sentences that I will impose will be that you are imprisoned for two years and six months, but you will be released after 10 months, and I will explain that to you in a few minutes.”7
Application to Adduce Evidence
As part of her submissions to this Court, the applicant argues that her mental health conditions were not taken into account and that her solicitors had not obtained material from the Sunshine Coast University Hospital and her general practitioner which should have been provided to the court. Accordingly, she seeks leave to adduce new evidence, namely the Discharge Summary from the Sunshine Coast University Hospital dated 14 December 2017,8 and a Report from her psychiatrist, Dr Mohamed Milad, to her general practitioner Dr McKibbin, dated 12 May 2017.9 As the latter document was in fact before the sentencing judge, the application would appear to relate only to the Discharge Summary.
This Court has power to receive evidence that was not before the sentencing judge if the evidence indicates that a sentence, other than the sentence imposed, would have been warranted. The respondent objects to the receipt of this new material on the basis that not only are litigants generally bound by the way in which their cases were presented, but that there must be finality in litigation. Furthermore it is argued that not only was the material available at the time of sentence, but it would not have materially affected the sentence imposed as it was in fact taken into account. It was argued that such additional evidence should only be admitted where the desire for finality in litigation is overborne by a need to avoid a miscarriage of justice and this is not such a case.
In determining whether this Court should accept that new material I note that not only was the Discharge Summary available at sentence, but that it would have been very dated at the time of sentence. The Discharge Summary was prepared some two years and four months prior to the sentencing hearing. Furthermore, it refers to one specific episode which involved a deterioration of mood and suicidal ideation where there had been no further involvement by the hospital. The Discharge Summary refers to the fact that whilst the applicant’s mood had deteriorated over the 12 months since the demise of her Business, the primary diagnosis was pathological gambling with a secondary diagnosis of a moderate depressive episode. The Discharge Summary noted she had been seen by the acute care team during that period on two occasions but had been difficult to engage.10 That document also indicates that the applicant resisted all follow up from the acute mental health team at the hospital because she intended to have future treatment with her private psychiatrist whom she had seen on 11 December 2017 and with whom she had scheduled a further appointment for 31 January 2018. She did not attend that appointment and there was no further follow up with her psychiatrist. She did not, on the evidence before the sentencing judge, have any further engagement with mental health professionals after 11 December 2017 as the letter from Dr Milad, tendered at sentence, made clear.
Is the Sentence Imposed Manifestly Excessive?
The applicant argues that the decisions of Acosta v The Queen,15 R v Massey,16 and R v Melrose,17 which were relied upon at first instance by the Crown, were distinguishable from her case because they involved more sophisticated conduct involving false invoices or were cases where the applicants had prior criminal convictions. The applicant argues that a sentence of greater similarity is the decision of R v Karam,18 which involved an elaborate scheme to defraud more than $1 million where a three year sentence of imprisonment with an immediate suspension was imposed. The applicant argues in particular that in that case, the sentencing judge specifically took into account the stress and anxiety experienced by the defendant whilst awaiting sentencing. The applicant argues that she also suffered increased anxiety levels and depression which were not given enough recognition by the sentencing judge.
In this regard, I note that there was no evidence to this effect before the sentencing judge and the evidence the applicant now seeks to adduce about her mental condition and anxiety significantly predates the presentation of the indictment. Furthermore in the applicant’s case, the complaint had been laid 12 months after she had been asked to participate in an interview and the indictment was presented eleven months after that. The subsequent delay was not due to the DPP or the Court but was an indulgence to the applicant as she took some time to engage legal representation.
As is well known, for an appeal court to be satisfied a sentence is manifestly excessive, the applicant must show that the sentence was so extreme or so severe that its severity by itself demonstrates that the judge made an error of some kind in the reasoning process. It is not sufficient that a lesser sentence could have been imposed but rather it must be established that the sentence was manifestly excessive and not one that was open to the sentencing court. A sentence is not shown to be manifestly excessive by simply pointing to other cases which are similar where a lesser sentence was imposed.19
In relation to the decisions relied upon by the applicant in her outline, it should be noted that the decision of R v Karam is a decision of single judge of the Victorian County Court and is not appellate authority. Furthermore, the charge was under s 135.1 of the Code, which carried a five year maximum penalty and related to non-payment of PAYG tax instalments on cash payments he received, which caused a loss to the ATO. The remaining charge related to his failure to withhold PAYG tax from wages and salaries paid to employees, and to remit that amount to the ATO. Whilst he was sentenced on the basis that the amount of loss to the ATO was approximately $1 million, he was found by the sentencing judge to be a vulnerable, unsophisticated and relatively unintelligent man who had been preyed upon by others. He was not the instigator of the scheme but was directed by others whilst somewhat aware of what was occurring. There was also considerable systemic delay in proceeding through the courts and that delay, together with his personal circumstances, resulted in him being sentenced to three years’ imprisonment with immediate release. Accordingly, there were some significant distinguishing features in that case.
“79 Where a sentencing court fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic [1973] VR 636, 641; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12].
80 The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
81 The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy (531).
82 The considerations which a sentencing court must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531).
83 The statements of principle by the High Court in Power, Deakin and Bugmy in relation to determining a non-parole period for a federal offence apply by analogy in determining whether a person who has been sentenced to a term of imprisonment for a federal offence should be released under s 20(1)(b), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence.”
The applicant has not therefore established that the sentence is manifestly excessive.
I would make the following orders:
The application to adduce further evidence is refused.
The application for leave to appeal against sentence is refused.
[2015] VSCA 94. ↩
[2015] QCA 254. ↩
[2016] QCA 202. ↩
At [8]. ↩
At p 11, [34] (citations omitted). ↩
ARB 26–27. ↩
ARB 32, ll 19–27. ↩
ARB 56–58. ↩
Applicant’s Outline of Submissions filed 20 July 2020 at pp 14–19. ↩
Applicant’s Outline of Submissions filed 20 July 2020 at p 15. ↩
ARB 54. ↩
ARB 57. ↩
(2011) 219 A Crim R 209 at pp 224, [51]–[54]. ↩
At p 224, [52]. ↩
[2015] VSCA 94. ↩
R
Ibbetson [2020] QCA 214
(2008) 22 NTLR 125
(1990) 169 CLR 525
(1974) 131 CLR 623
(1984) 58 ALJR 367
(1989) 167 CLR 372
The application to adduce further evidence was refused, and the application for leave to appeal against sentence was refused.
In R v Melrose,3 a former tax agent and undischarged bankrupt prepared 25 income tax returns for 10 individuals which were lodged with the ATO. He produced false supporting documents whereby the ATO paid various taxpayers $182,287.23 and withheld refunds of $21,741.27, which was a total of $204,028.50. Of that amount, an amount of $111,582.22 was remitted to Melrose after he made threats to the taxpayers. He was charged with 23 counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Code and two counts of attempting to obtain a financial advantage by deception contrary to ss 11(1) and 134.2(1) of the Code. He was 63 years old with a criminal history at sentence and was 52 to 53 years old at the time of the offending. The sentencing judge took into account the 10 year delay and the exacerbation of the applicant’s depression caused by that delay, but nonetheless considered that the offending concerned a “relatively sophisticated fraud which was motivated solely by greed”.4 It was held on appeal that a sentence of four years with a non-parole period of two years was not manifestly excessive even when regard was had to the issue of delay as follows:
I also note Dr Milad’s report, which was before the sentencing judge, noted that he had seen the applicant on 11 May 2017 but that she had “no known medical illness to explain her behaviour and no past psychiatric history”.12 The diagnosis was gambling addiction with a secondary diagnosis of adjustment disorder with mixed anxiety and depressive symptoms. He stated that she was currently employed and was very guarded in speaking about her problems. She did not mention the gambling addiction until later in the interview but described anxiety symptoms. He noted she was drinking ten cans of beer per night at that point in time and had been doing so for some two months. He noted her mental state had deteriorated over the past six months, especially over the last two months, and that she had underlying issues in relation to gambling. He stated that she had a gambling debt of $200,000, but postulated that in discussing her difficulties, she had minimised both the time she reported spending on poker machines and her reported losses which he identified as a gambling trait. He noted she used to run a Telstra franchise but most likely closed it because it was not profitable.
It would seem that the learned sentencing judge considered this dated material which was tendered in a favourable light and stated in his sentencing remarks that the applicant had some insight into what had led her to her offending and had taken some steps to make sure she did not find herself in a similar position in the future. A less favourable view would have been that there was no up to date information about her mental health treatment and that the existing material indicated a fragile therapeutic relationship as she had not been open with her treating psychiatrist, had minimised her behaviour and was resistant to engagement in mental health treatment.
The Discharge Summary is essentially unremarkable and contains no further information other than that the applicant had suicidal ideation on a particular date. There is no doubt that this material was available at the time of the sentence. It does not present any information that is new or that is of any great assistance to her. In my view, the additional material is incapable of affecting the sentence passed, and a miscarriage of justice could not be occasioned due to it not being admitted.
The applicant also argued that the effect that her incarceration has had on her daughter should also be taken into account, particularly in the context of the COVID-19 pandemic when restrictions resulted in the cancellation of personal visits. In this regard, I note that no evidence has been adduced about the actual effect on her daughter but it is accepted that personal visits have been restricted since the declaration of stage 3 restrictions in prisons on 23 March 2020 (a week after the sentence was imposed). The restrictions have however affected the entire prison population and their families and their imposition occurred after the applicant’s sentence was imposed. This Court’s function is to consider the sentence imposed by the primary judge and circumstances which have arisen post-sentence are not a relevant consideration when considering the merits of the appeal.
In any event, as the respondent argues, whilst the effect of the sentence on the applicant’s family is a relevant sentencing consideration, the principles referred to in R v Huston, Fox and Henke; Ex parte Director of Public Prosections (Cth),13 make it clear that the consequences need to be exceptional before they can affect the sentencing outcome. In that case, the Court of Appeal held that the authorities indicate that hardship to a family should not ordinarily ameliorate a sentence which is otherwise appropriate unless the circumstances are highly exceptional or where it would in effect be inhuman to refuse to do so. The Court noted that hardship and distress to families as a result of a term of imprisonment on a family member will inevitably be not beyond that commonly observed in courts as a result of the necessary punishment of wrongdoers.14 In my view, as this possible hardship has occurred post-sentence and affects the prison population as a whole, it could not amount to exceptional circumstances that should have been taken into account by the sentencing judge.
The application to adduce further submissions or further evidence in relation to events which have occurred after the imposition of the sentence on 16 March 2020 should therefore be refused.
The applicant’s submission that she was in some way disadvantaged at sentence because she received late advice from counsel about the possible sentence which meant she could not receive alternative representation must be rejected. The submission is completely without merit and irrelevant because any alternate representation could not change an outcome, namely, the sentence which was likely to be imposed by the sentencing judge based on appellate authority.
The other decision relied upon by the applicant is Police v Miller,20 which is an unreported Brisbane Magistrates Court decision where the defendant was sentenced on a plea of guilty to a charge of fraud as an employee with detriment caused in the sum of $75,519.71 pursuant to the Criminal Code Act 1899 (Qld). Significantly, full restitution had been made at sentence. The charges related to the misuse of a credit card on 18 occasions whilst the defendant was CEO of the Queensland Museum and Chief Scientist. She obtained over $45,000 in the form of health insurance payments that were paid by her employer which she would not have been entitled to had she been truthful about her citizenship status. She also used the credit card to purchase clothing, pay her mortgage and her daughter’s tuition fees at school. The defendant did not have a criminal history, was otherwise a hardworking public servant who had surrendered into custody and had suffered public shaming due to her high profile position. Ultimately, she was sentenced to three years’ imprisonment to be suspended after three months, with a three year operational period. The head sentence imposed in that case does not in fact support an argument that the head sentence imposed in this case was manifestly excessive.
In my view, the sentence imposed by the learned sentencing judge was in line not only with the appellate authorities relied upon at sentence but also the submissions of the applicant’s own counsel. Furthermore, the respondent in this appeal has referred the Court to the decision of the Court of Appeal of the Supreme Court of Western Australia in De Hollander v The Queen,21 which supports the sentence imposed. In that case, the appellant had pleaded guilty on the second day of her trial to three counts of fraud on the basis that she had not declared cash she had received during the course of conducting her garden business in her BAS returns. Whilst the loss of revenue to the ATO was estimated to be in the order of $90,000, she was sentenced on the basis that she had intended to defraud a greater sum. She suffered from a major depressive disorder and was a suicide risk at the time of sentence. She was sentenced to three years’ imprisonment with a 20 month non-parole period which was not considered to be manifestly excessive on appeal. There are some similarities with the applicant’s case, in that the fraud was part of a legitimate business and the appellant was otherwise of good character but was suffering from a depressive disorder. However, the depressive disorder in that case was more significant than that experienced by the applicant. It should also be noted that the appellant in that case received both a greater head sentence and a longer non-parole period for a fraud involving half of the amount involved here.
Furthermore, the non-parole period set for release on recognisance was also in accordance with the principles outlined by Buss JA in De Hollander as follows:22
[2015] QCA 254. ↩
[2016] QCA 202. ↩
[2020] VCC 496. ↩
R v Peterson [2008] QCA 70, per Keane JA at [18]. ↩
Unreported, Brisbane Magistrates Court 1 May 2020. ↩
[2012] WASCA 127. ↩
At pp 17–18 (emphasis in original). ↩