R v Lovel

SUPREME COURT OF QUEENSLAND

CITATION: R v Lovel [2007] QCA 281

PARTIES: R / v / LOVEL, Michelle Lynette / (applicant)

FILE NO/S: CA No 132 of 2007 / DC No 301 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Beenleigh

DELIVERED EX TEMPORE ON: 27 August 2007

DELIVERED AT: Brisbane

HEARING DATE: 27 August 2007

JUDGES: McMurdo P, Wilson and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant was convicted of defrauding the Commonwealth and obtaining a financial advantage by deception – where the applicant was sentenced to three and a half years imprisonment to be served concurrently with a recognisance release order directing release after nine months on a three year good behaviour bond – where counsel for the applicant contended that there were exceptional circumstances which warranted that no period of actual custody be served – whether the sentence imposed was manifestly excessive / Crimes Act 1914 (Cth), s 21(a), s 29D, s 16IA / Criminal Code (Cth), s 134.2 / R v Hassarati [2005] QCA 102, CA No 417 of 2004, 11 March 2005, considered / R v Holdsworth [1993] QCA 242, CA No 94 of 1993, 22 June 1993, considered / R v Hurst [2005[ QCA 25, CA No 387 of 2004, 14 February 2005, considered / R v Wright (1994) 74 A Crim R 152, considered

COUNSEL: A J Kimmins for the applicant / G Rice for the respondent

SOLICITORS: Price & Roobottom Solicitors for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent

THE PRESIDENT: Justice Philippides will deliver her reasons first.

PHILIPPIDES J: The applicant Michelle Lovel was convicted on 17 May 2007 on her plea to one count of defrauding the Commonwealth pursuant to s 29D of the Crimes Act 1914 (Cth) and one count of obtaining a financial advantage by deception pursuant to s 134.2(1) of the Commonwealth Criminal Code. Concurrent sentences were imposed of three and a half years’ imprisonment with a recognisance release order directing release after nine months on a three year good behaviour bond.

The offences arise from the applicant obtaining payment of the social security benefits known as Jobsearch Allowance, Rent Assistance and Newstart Allowance in excess of her entitlements. The applicant obtained those benefits by falsely stating that she was paying rent for premises at which she did not live, by claiming benefits under a false name when already receiving benefits under her true name and by failing to declare income she received from employment in her true name while obtaining benefits in a false name. The total overpayment of benefits thus obtained was $94,409.06.

As at 18 December 1995 the applicant was in receipt of the Newstart Allowance in her own name. On that date she claimed Jobsearch Allowance in a false name and received dual benefits until August 1999. For identification she produced a driver's licence in the false name to Centrelink. To receive dual benefits she opened a bank account in that false name. After August 1999 the applicant continued to receive benefits in a false name although she was by then in full time employment.

To maximise the amount received in her application of 18 December 1995, the applicant claimed rent assistance. She was then living at a residence which she had owned with her defacto husband since July 1992. A forged tenancy agreement was used to support the claim. In ensuing years the applicant provided numerous forged documents to support ongoing rent assistance payments.

The applicant commenced employment with the Queensland Ambulance Service on 5 April 1997. She was employed continuously full time from 12 January 1998 to the end of the offending period. In various forms of contact with Centrelink the applicant pretended to be a job seeker. Throughout the offending period the applicant was residing, as I mentioned, in a defacto relationship, with a man who was also in receipt of income. Those facts were not disclosed to Centrelink.

The applicant was born on 18 January 1954 and is 53 years of age. In imposing sentence the learned sentencing Judge proceeded on the basis that the applicant had no relevant criminal history. Her history discloses a single stealing offence which occurred on 4 January 1996 in respect of which she was fined $150 with no conviction being recorded.

Before the sentencing Judge it was submitted that the relevant range for the head sentence was one of between three to three and a half years’ imprisonment and that matters of mitigation could be reflected in the ordering of a recognisance release after a period of one third of the sentence.

Counsel for the applicant did not quarrel with the range suggested by the Crown but argued that there were exceptional circumstances which warranted that no period of actual custody be required to be served. In imposing sentence, his Honour took into account as significant aspects of the offending that large amounts of money were involved, nearly $95,000, the lengthy period over which the offending occurred, being between October 1995 and 3 December 2004, just over nine years, and that significant positive steps were taken by the applicant in order to commence and continue the fraudulent activity.

Those circumstances of aggravation were considered by the sentencing Judge to justify a head sentence of three and a half years’ imprisonment in respect of each offence. However his Honour moderated that sentence by taking into account the various weighty matters of mitigation present in this case and making an order for recognisance release pursuant to s 20(1)(a) of the Commonwealth Crimes Act after nine months.

Those matters of mitigation to which his Honour referred were the applicant's extensive cooperation with the authorities, including that the matter proceeded by ex officio plea of guilty, the fact that full reparation had been made by the applicant, which the sentencing Judge regarded as particularly significant, and the personal circumstances of the applicant.

As to the latter, his Honour referred in some detail to the report of Dr McCullough, a psychologist, which outlined in detail the personal circumstances of the applicant's life, the patterns of psychological behaviour which had become entrenched in her life and her addiction to gambling for which she had sought continuing treatment. She had grown up in a dysfunctional family, had been the subject of verbal and emotional abuse, had been in a violent marriage which terminated, leaving her to bring up three children alone.

Dr McCullough detailed the interaction of the applicant's psychological and emotional dysfunction, in particular she described a schema of self sacrifice and a lack of sense of personal worth and the circumstances in which she found solace in gambling. And that in turn became an addiction requiring the applicant to obtain funds to feed her addiction through her offending behaviour. His Honour also referred to the opinion expressed by Dr McCullough that there was no likelihood of further offending behaviour.

The sentencing principles applicable to offences such as the present are well established. They were referred to in R v Hurst [2005] QCA 25, in the judgment of The President at page 7 with whom Justices Mackenzie and Chesterman concurred. The President emphasised that in cases such as the present considerations of deterrence feature largely. In that case her Honour said:

"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."

In contending at first instance and before this Court that no custodial period ought to have been required to be served, counsel for the applicant placed primary emphasis on the fact that the applicant had made full reparation before sentence. In that way counsel sought to distinguish decisions such as R v Hurst and R v Hassarati [2005] QCA 102, and other cases relied upon by the Crown.

On appeal a further matter was raised as pointing to exceptional circumstances. That was that the applicant had voluntarily ceased further offending in December 2004. It is difficult to place much weight on this factor however, given that the agreed facts indicate that the cessation coincided with the review of her entitlements by Centrelink in December 2004, which uncovered the relevant offending, even though the further investigations involving the AFP and revealing documentary evidence to substantiate the offending only occurred some 12 months later.

His Honour gave careful and detailed consideration to the significant matters of mitigation and particularly that the applicant had made full reparation which he regarded as, "probably the key issue in the whole matter." However his Honour nevertheless concluded, properly in my view, that an actual custodial component was required in order to appropriately reflect the severity of the offending and the important consideration of general deterrence which is a significant factor in offences of the type in question in the present case.

In this regard his Honour paid careful attention to the principles set out in decisions such as Hurst and Wright. In imposing sentence his Honour indicated that, while he did not consider it appropriate to impose a sentence involving no custodial component, the significant matters of mitigation could be appropriately reflected in reducing the custodial component to a period of nine months. In this way his Honour fashioned a sentence such that the head sentence of three and a half years, imposed at the higher sentencing range, reflected the very serious nature of the offending behaviour but the release date recognised the significant factors of mitigation and fixed a date considerably below the usual level of one third.

In my view, the learned sentencing Judge approached his discretion in a careful and balanced matter, having regard to all relevant considerations and applying proper sentencing principles. I can see no basis upon which it can be said that his Honour erred in the exercise of his discretion. The fact that the applicant had made full reparation before sentence was imposed was a significant consideration and one which is required to be taken into account (see s 16A(2)(f)(i) of the Crimes Act). It may be noted however that the reparation was made only shortly before sentence was imposed and in circumstances where a proceeds of crime forfeiture action was foreshadowed. Further, as stated in Wright, the Court must be careful that an offender with sufficient means does not, by making full reparation in a serious case such as the present one, avoid a custodial sentence. Courts must be slow to reward an offender with sufficient means over an indigent offender in such circumstances.

This is not a case of a wealthy offender seeking to buy their way out of a custodial sentence. The applicant was already in custody at sentence and in order to make the reparation incurred an onerous, long term financial burden involving also a burden on her daughter. However, even when those circumstances are combined with the other factors of mitigation, they are not so compelling as to make the sentence imposed by the learned sentencing Judge outside an appropriate sentencing discretion.

Persons minded to defraud the Commonwealth as this applicant did, by offences which are difficult to detect over a prolonged period and by determined and ongoing efforts involving considerable sums of money, can expect to be met with condign punishment. The sentences imposed were well within the sentencing discretion. I would refuse the application for leave to appeal against sentence.

THE PRESIDENT: I agree.

WILSON J: I agree.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.