R v Marshall

SUPREME COURT OF QUEENSLAND

CITATION: R v Marshall [2010] QCA 29

PARTIES: R v MARSHALL**, Margaret Rose** (applicant)

FILE NO/S: CA No 230 of 2009 / DC No 222 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 26 February 2010

DELIVERED AT: Brisbane

HEARING DATE: 3 December 2009

JUDGE: McMurdo P, Muir JA and Atkinson J / Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS: Leave to appeal against sentence granted;Appeal allowed;**Set aside the sentences imposed at first instance, but **not the reparation order: andSubstitute, on each count, sentences of three years imprisonment with an order directing that the applicant be released on 4 December 2010, upon her giving security by recognizance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years**.**

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted after a trial of one count of defrauding the Commonwealth and one count of dishonestly causing a risk of a loss to a Commonwealth entity – where applicant sentenced to two years and nine months imprisonment on each count, to be served concurrently, with an order for release on recognizance after serving 20 months, conditional on the applicant being of good behaviour for a period of two years – where applicant submitted that the primary judge erred in accepting he was bound to order the applicant’s release after serving 60 - 66 per cent of the head sentence and that fixing the recognizance release date as he did resulted in the sentence being manifestly excessive – whether primary judge failed to have regard to sentencing principles – whether the primary judge gave sufficient weight to the circumstances of the case – whether the primary judge erred in imposing a manifestly inadequate sentence / Crimes Act 1914 (Cth), s 16A, s 19AL, s 19 AM / Bertilone v The Queen [2009] 231 FLR 383; [2009] WASCA 149, cited / Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited / R v Bernier (1998) 102 A Crim R 44, cited / R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved / R v de Vroome (1988) 38 A Crim R 146, cited / R v Fermanian [1996] QCA 438, cited / R v Ferrer-Esis (1991) 55 A Crim R 231, cited / R v Gambier [2009] QCA 138, cited / R v Harkness [2001] VSCA 87, cited / R v Mara [2009] QCA 208, considered / R v Mokoena [2009] QCA 36, considered / R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited / R v Nguyen and Tran [1998] 4 VR 394, cited / R v Robertson (2008) 185 A Crim R 441, [2008] QCA 164, considered / R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, approved / R v Stitt (1998) 102 A Crim R 428, cited / R v Sweet (2001) 125 A Crim R 341; [2001] NSWCCA 445, cited / R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited / R v Viana [2001] NSWCCA 171, cited / R v Woods (2009) 24 NTLR 77; [2009] NTCCA 2, cited / Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL: B W Farr SC for the applicant / G R Rice for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent

1. McMURDO P: The application for leave to appeal against sentence should be granted, the appeal allowed and the sentences imposed at first instance set aside as the sentence discretion miscarried. Like Muir JA, I would substitute a sentence of three years imprisonment with a recognizance release order after 15 months on both counts. I agree with Muir JA's reasons.

2. It could be argued that the sentences substituted by this Court are heavier than those imposed at first instance (two years and four months imprisonment with a recognisance release order after 20 months), so that the applicant should have been given the opportunity to withdraw her application for leave to appeal.¹ I note that her counsel informed this Court at the hearing of the application that he had instructions to ask for the sentence now substituted, and that the applicant did not want the opportunity to withdraw her application for leave to appeal. I also emphasise that this applicant did not have the mitigating benefit of remorse; a guilty plea; or cooperation with the authorities. But the offences are not the most serious examples of the offences charged; she had no prior convictions at 60 years of age; and was in ill-health.

3. As Muir JA explains in his reasons, and as Keane and Fraser JJA explained in their joint reasons in R v Ruha, Ruha and Harris; ex parte Cth DPP,² there is no requirement in the Crimes Act 1914 (Cth) or elsewhere that judges sentencing Commonwealth offenders must ordinarily ensure that any particular proportion of the total sentence of imprisonment must be served, before ordering release on parole or bond.³ But, as this Court recognised in R v CAK and CAL; ex parte Cth DPP,⁴ an important principle to be observed in sentencing Commonwealth offenders is consistency with sentences imposed on offenders across all Australian jurisdictions.⁵

4. I respectfully agree with Keane and Fraser JJA's summary of the sentencing provisions under the Crimes Act, subject to the following observation. In the absence of full argument as to the applicability of those provisions to established facts, I do not consider it prudent to express a concluded view as to the consequences of a breach of a condition of a parole order by way of a subsequent conviction of a serious offence. Those circumstances did not arise in , nor in the present case.

After a trial in the District Court the applicant was convicted of one count of defrauding the Commonwealth between 4 April 1996 and 23 May 2001 (count 1) and one count of between 24 May 2001 and 2 November 2006 (count 2) dishonestly causing a risk of a loss to a Commonwealth entity, namely Centrelink, knowing or believing that there was a substantial risk of the loss occurring. She was sentenced to terms of imprisonment of two years and nine months on each count with an order for release on recognizance after serving 20 months, conditioned on the applicant being of good behaviour for a period of two years. The sentences were ordered to be served concurrently. The primary judge also made a reparation order in the amount of $114,403.87.

7. The applicant appeals against her sentence on the grounds that it was manifestly excessive.

8. The prosecution case in respect of count 1 was that the applicant intentionally deprived the Commonwealth of Australia of money by failing to tell Centrelink that she was living with a person, as if married, knowing that she was in such a relationship and was required to disclose it to Centrelink. Centrelink had sent the applicant 13 letters advising her of the requirement to inform Centrelink in the event that she married or started living with someone as if married. The defence case, which the jury rejected, was that the applicant was not living with a person in such a relationship and had not been dishonest as alleged.

9. The prosecution case in respect of count 2 was that by the conduct relied on to support count 1, but over a different period, the applicant caused a loss to the Commonwealth, knowing or believing that there was a substantial risk of a loss of benefit by dishonest conduct. The defence case was the same as for count 1.

10. The applicant was 60 years of age at the time of the offence and had no criminal history. She left school at the age of 14. She suffers from emphysema, diabetes, bronchiectasis, asthma, gastro-oesophageal reflux disease, hypertension and ischaemic heart disease. She had a successful cholecystectomy in February 2009 for gall bladder disease. As a result of emphysema she has been the recipient of a disability pension since she was 39 years of age.

The sentencing remarks

11. The primary judge found that the total loss to the Commonwealth from the offences was $120,703.87. That sum was and is not in issue. He noted that the applicant had entered into an arrangement with Centrelink to pay $50 a week and that the amount outstanding at the time of sentencing was $114,403.87.

12. The primary judge remarked:

(a)On the seriousness of offences of the type in question and the need for strong, general deterrence;

(b)That the applicant's conviction after a trial and failure to cooperate with investigators deprived her of the benefits which would have stemmed from a plea of guilty and cooperation; and

(c)On the duration and determination of the applicant's offending conduct.

13. In mitigation, the sentencing judge referred to the applicant's age, ill-health and poor education. Her conduct in making part restitution was not expressly mentioned in this regard.

14. The primary judge noted that the schedule of comparable cases provided to him by the learned Crown Prosecutor indicated that terms of about three years were imposed in broadly similar cases, but that where there had been a plea of guilty, cooperation and/or other "compelling mitigating circumstances", orders for release were made, on average, at around the one-third mark. It may be inferred that the primary judge felt constrained by authority and, in particular, R v Mara*,*⁷ to set a recognizance release date "at 60 per cent or thereabouts" of the term of the sentence.

15. In addresses the primary judge had been referred by the learned Crown Prosecutor to R v CAK & CAL; ex parte Cth DPP⁸ in which it was said with my concurrence:⁹

"The norm for non-parole periods and periods required to be served before a recognizance release order for Commonwealth offences is generally considered to be after the offender has served 60 to 66 per cent of the head sentence. The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation, but that is the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it."

16. The primary judge said:

"Because I am going to fix your pre-release period at 60 per cent or thereabouts, I consider that I am not, in any sense, bound by that three year tariff, if I may call it that for want of a better word. These are a set of Queensland cases and if the object of the exercise is to be consistent across the country then I can be so with respect to the pre-release period and I have nothing before me as to what the appropriate head sentence is imposed across the country. Having said that I consider your offending to be extremely serious and I am bound by the jury's verdicts and by the evidence which amounted to a significant period of offending, a great deal of money."

17. Prior to making these remarks, his Honour observed, in effect, that the three year terms of imprisonment in the prosecution's schedule of comparable sentences were imposed under a different sentencing regime.

Counsels' submissions at first instance

18. The Prosecutor submitted that a head sentence of three to three and a half years with a release date set after 66 per cent of that term had been served was appropriate. However, the submission was qualified by an acknowledgement that a release date after approximately 50 per cent of the sentence had been served would be appropriate if it was considered by the sentencing judge that "significant medical factors" warranted that approach. Defence counsel submitted, in effect, that if the parole release date were to be set later than had previously been customary in Queensland, there should be a reduction in the head sentence in order to compensate for the change.

The submissions of counsel for the applicant

19. The submissions of counsel for the applicant may be summarised as follows. The primary judge accepted that he was bound, or that it was proper, to order the applicant's release after serving 60 to 66 per cent of the head sentence. His Honour, however, was concerned that a combination of a three year term, as the schedule of comparable sentences suggested was appropriate, and such a release date, would result in the applicant's serving significantly more time in actual custody than had been ordered in the schedule cases.

20. To meet this concern the primary judge reduced the three year head sentence that he would otherwise have imposed to two years and nine months and ordered the applicant's release on recognizance after she had served 20 months. This reduction did not achieve the "desired outcome" and resulted in a manifestly excessive sentence.

21. The circumstances that the applicant had no prior conviction, was 60 years of age and had significant health problems, justified a release after serving 40 per cent of her sentence. On a three year sentence, that would have resulted in a term of 14.4 months of actual imprisonment. Alternatively, the primary judge could have imposed a three year sentence and set the release date at 40 per cent.

The submissions of counsel for the respondent

22. Counsel for the respondent's submissions were to the following effect. The primary judge erred in concluding that there had been a change in the sentencing regime. The relevant regime is and was provided by the Crimes Act 1914 (Cth) which was relevantly unchanged. That misapprehension, however, worked in the applicant's favour by leading the primary judge to reduce the head sentence.

23. The primary judge correctly concluded that apart from the applicant's health issues there was no reason to "discount the pre-release period". He was entitled to draw from R v Mara¹⁰ that welfare fraud was not exempt, as a class of offending, from the "practice" of fixing the period of actual custody for Commonwealth offences at 60 – 66 per cent of the head sentence. A pre-release period of 60 per cent or more has been applied in welfare fraud cases where appropriate.¹¹ Frequently, however, mitigating factors warrant a different course. R v Robertson¹² is an example of this but the mitigating features in Robertson are absent here. R v Robertson, R v Smith¹³ and R v Fermanian¹⁴ support the sentences under consideration.

The respondent's schedule of comparable sentences and further submissions relating to the schedule

24. At the request of a member of the Court, counsel for the respondent provided a 45 page schedule summarising the sentences imposed or considered on appeal by intermediate appellate courts over the last 10 to 12 years for social security fraud. Approximately one-third of the decisions were from New South Wales. Two were from South Australia, one from Tasmania and there were three from each of the Australian Capital Territory and the Northern Territory. A substantial majority of the decisions were in respect of sentences imposed after guilty pleas. Counsel for the respondent submitted in relation to the schedule that:

(a)A finding of special or exceptional circumstances can justify very lenient treatment even where the offending is objectively quite serious.¹⁵

(b)The authorities in the schedule demonstrate that the terms of recognizance release orders vary widely from release forthwith to actual custody for up to 75 per cent of the term of the sentence but the majority of cases involve actual custody of less than 50 per cent of the term of the sentence reflecting the following considerations:

"Standard mitigatory factors such as the making of restitution and an early plea and co-operation with the authorities, have application to social security offences as to others, but some may carry more weight in this context than in others. Thus, social security offenders may be more likely to carry significant financial commitments or face serious financial difficulties, be more insecure in their employment and fear the consequences of loss of their allowances and benefits, suffer from ill-health and have a generally disadvantaged background. The effect of imprisonment on the beneficiary's family may be greater than is usual, if they are sole parents or are taking care of aged parents. Many of those charged with the most serious offences, particularly where the offences have been carried out over a long period of time, are considerably older than the average offender. Females represent over 40 per cent of offenders in the higher courts, a far higher proportion than that for offences generally." ¹⁶

25. Counsel for the respondent conceded that even if there was a reasonably well recognised practice of fixing a non-parole period at 60 – 66 per cent of the head sentence for Commonwealth offences, it was nevertheless difficult to sustain an argument that there was such a practice involved in the making of recognizance release orders in welfare fraud cases. Counsel for the applicant submitted, on the basis of this concession, that the sentencing judge had erred and that this Court should exercise the sentencing discretion afresh.

Analysis of the schedule of comparable sentences

26. Perusal of the respondent's schedule reveals that of the eight Victorian decisions summarised, two had non-parole periods equal to 66 per cent or more of the term of imprisonment: two had recognizance release dates at the midpoint and four had recognizance release dates at or prior to one-third of the term of imprisonment. Of the twenty-five decisions from New South Wales, eleven had immediate release orders, community service or periodic detention orders or recognizance release dates set at half or less of the term of imprisonment. In three cases, the non-parole period was greater than 66 per cent of the term of the sentence.

27. In not one of the 13 Queensland cases in the schedule was the release date later than the halfway point of the term of imprisonment. In two cases immediate release was ordered and in six other instances the release date was set at or before the one-third mark.

Schedule of comparable Queensland sentences

28. At first instance, the Crown Prosecutor provided the primary judge with a table of 21 sentences imposed on females convicted of social security fraud in Queensland, including two Court of Appeal decisions. In not one of these cases was the release date later than the halfway point of the sentence. In two cases immediate release was ordered. The head sentences ranged from eighteen months imprisonment for a fraud involving $72,886 to three years for a fraud involving $131,024. The head sentence in fourteen of the cases was a term of imprisonment of three years. Where three year terms of imprisonment were imposed the time to be served in actual custody varied from 100 days to fifteen months. The schedule indicates that seven of the sentences were imposed after pleas of guilty but counsel for the respondent informed the Court that virtually all the sentences in the schedule involved guilty pleas at the lower end of the spectrum of seriousness in respect of head sentences of three years or less.

The practice, if any, relating to the setting of non-parole periods and recognizance release dates

29. It is apparent from the above discussion that the passage from the reasons in R v CAK & CAL quoted above was based on a misconception as to the existence of a generally uniform approach in relation to the setting of recognizance release dates and non-parole periods for Commonwealth offences. A perusal of decided cases also confirms a lack of uniformity in that regard throughout the Commonwealth.

30. In R v Robertson¹⁷ consideration was given to the question of whether there was in fact a general uniformity of approach to the length of non-parole periods in sentences for certain Commonwealth offences. It was concluded that, on the material presented to the Court, a general uniformity of approach had been shown to exist only in respect of certain drug offences. The Court in R v CAK & CAL was not referred to R v Robertson.

31. In Robertson, a social security fraud case involving the fraudulent overpayment of $121,593, concurrent sentences of three years imprisonment with a recognizance release date set after 15 months were varied by providing for release after 12 months from the sentencing date. In his reasons, Fraser JA observed:¹⁸

"As was held by this Court in R v To, in the context of sentences for Federal offences the non-parole period should be arrived at without reference to the specific statutory predisposition in Queensland favouring a point which is not later than the mid point of the head sentence. For Federal offences, the process of fixing a non-parole period or, in this case, the 'pre-release' period under the 'recognizance release order' pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), must be undertaken in accordance with that Act and, where applicable, the general principles expressed in decisions such as Power v The Queen (1974) 131 CLR 623 at 628; and Deakin v The Queen (1984) 11 A Crim R 88 at 88 – 89.

It was submitted on behalf of the respondent that 'the norm for non-parole periods is in the range of about 60% to two-thirds of the head sentence, although subject to the judicial discretion'. This was said to be supported by interstate decisions and one Queensland decision. I accept that in striving to achieve consistency in sentencing, State courts exercising the judicial power of the Commonwealth should have regard to comparable, authoritative decisions of courts throughout Australia; but in my opinion the decisions cited for the applicant’s proposition were not comparable ones." (footnotes omitted)

32. His Honour had earlier made the point that although it was proper to take into account decisions which "establish ranges within which sentences are regularly imposed for similar offending, … the proportion which the period to be served in prison bears to the whole term is to be fixed by taking into account all of the circumstances rather than by some rule of thumb".

33. In R v Mara,¹⁹ Wilson J noted that the Crown Prosecutor at first instance produced a schedule summarising sentences for child pornography offences which showed that: the time served in actual custody as a percentage of the head sentence varied from 60 to 66 per cent in New South Wales (with some sentences being as low as "33% and 55%") and South Australia, through 50 to 55 per cent in Victoria and to 33 per cent in Queensland.

34. After remarking on the existence of "markedly differing practices among the States" regarding the "setting of periods of actual custody before conditional release" her Honour noted that the matter was one within the discretion of the sentencing judge.²⁰ Later in her reasons she observed that "… in so far as there is a practice of setting the period of actual custody for Commonwealth offences at 60 – 66 per cent of the head sentence, it is not confined to particular classes of offences".²¹ In support of that proposition, her Honour referred to R v CAK & CAL and R v Bernier²² and noted the divergence from that practice in R v Mokoena²³ and R v Gambier.²⁴

35. In Mokoena, Holmes J, with whose reasons Fraser JA and McMurdo J agreed, said:

"At this Court’s request, counsel for the respondent undertook to provide some information as to the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the half-way mark of the sentence. An examination of sentence appeals from other jurisdictions bears out the statement of the prosecutor below. In R v Selim, for example, the New South Wales Court of Criminal Appeal observed,

'There is no rigid rule as to the proportion that a non-parole period should bear to the head sentence, but more often than not the non-parole period is more than fifty percent of the head sentence and is ordinarily of the order of 60% to 66 ⅔% of it.'

Similar comments can be found elsewhere in the judgments of the New South Wales Court of Criminal Appeal. The practice has been consistently applied in other states. It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs." (footnotes omitted)

36. Later in her reasons, her Honour observed:²⁵

"The setting of a non-parole period of 53 per cent of the sentence was not mandated by legislation, but was consistent with the practice in other drug importation cases, in this State and others, of setting the non-parole period beyond the half-way mark of the head sentence, at a point to be determined by the circumstances of the case. In the interests of comity between courts exercising Federal jurisdiction, that practice was properly followed."

37. In Bertilone v The Queen,²⁶ after a review of Western Australian decisions in respect of Commonwealth drug importation offences, Buss JA, with whose reasons the other members of the Court agreed, concluded that although most of the cases selected and relied on by counsel for the appellant set the parole period at the midpoint of the sentence, they did not establish a usual standard or practice.

38. Dunford J, with whose reasons the other members of the Court agreed, in discussing the approach taken with regard to the setting of non-parole periods said in R v Stitt that:²⁷

"Generally speaking, in relation to federal offences (and State offences prior to the Sentencing Act 1987 (NSW) under which different considerations apply), non-parole periods have generally varied between 60 to 75 per cent, with periods of 75 per cent being rare and limited to the more serious cases where the prospects of rehabilitation have not been considered good. (See Drazkiewicz (unreported, Court of Criminal Appeal, NSW, No 60706 of 1992, 23 November 1993) per Justice Badgery-Parker at p 7; Barsley (unreported, Court of Criminal Appeal, NSW, 12 December 1997). A similar approach has been taken in other States: Nguyen (1997) 99 A Crim R 151 at 175-176.

Furthermore, in relation to cases involving white collar crime and fraud on the government, the pattern indicates a tendency to fix relatively lengthy head sentences, but with a substantial gap between head sentence and non-parole period or minimum term: see Corbett (1991) 52 A Crim R 112 at 107, Bracken (unreported, Court of Criminal Appeal, NSW, No 60169 of 1994, 4 November 1994), p 5." (emphasis added)

39. The question of fixing non-parole periods was addressed by Kenny JA in R v Nguyen and Tran, a burglary and false imprisonment case, as follows:²⁸

"There is no set ratio which must exist between the head sentence and the non-parole period and, in fixing a non-parole period, the judge has a wide discretion. As Callaway J.A. observed in R. v. Bolton and Barker [1998] 1 V.R. 692 at 699, '[i]n the majority of cases the proportion is between two-thirds and three-quarters but both shorter and longer periods are found'. A shorter non-parole period may reflect a number of matters, including an optimistic view of the prisoner's prospects of rehabilitation. A longer non-parole period may also reflect a number of matters, including the gravity of the offence and the need for condign punishment."

40. As was pointed out by Riley J, with whose reasons Martin CJ and Mildren J agreed, in R v Woods,²⁹ different considerations may apply to the fixing of a non-parole period and the determination of a conditional release date. His Honour said:³⁰

"The fixing of a non-parole period is a different exercise from ordering the conditional release of an offender after conviction. A significant difference between the two is that the fixing of a non-parole period establishes the period during which the prisoner is not able to be granted parole. Whether he or she is granted parole after the expiry of the period is for the relevant Parole Board to determine in light of the circumstances existing at the completion of the non-parole period. On the other hand, a recognisance release order allows the sentencing judge, at the time of sentencing, to fix with certainty the date upon which the person shall be released (which may be immediately) subject, of course, to compliance with the terms of the order."

41. Counsel for the respondent submitted that for sentences of up to ten years in length the differences involved in fixing a non-parole period and ordering a conditional release may be illusory as, under s 19AL of the Crimes Act 1914 (Cth), (with the exception provided for in s 19AM), release on parole is at the date fixed by the Court. The submission overlooks the fact that, generally at least, recognizance release dates will be fixed in respect of less serious offences and for which only a short term of actual imprisonment and that no term of actual imprisonment may be imposed.

42. There is strong support for the conclusion that, in the case of drug importation offences, non-parole periods in New South Wales are normally in the range of about 60 to 66 per cent. The cases which are cited in R v CAK & CAL at footnote eight and other cases referred to in these reasons appear to show that in New South Wales non-parole periods for social security and other frauds against the Commonwealth are commonly set in a 60 to 66 per cent range but that any such practice is far from uniform.³¹ No such practice or norm exists in Queensland in respect of social security fraud. The research of counsel for the respondent and the cases from jurisdictions other than Queensland and New South Wales referred to above, strongly suggest that there is no such norm or practice in Western Australia, Victoria or the Northern Territory in social security fraud cases.

Considerations relevant to the determination of recognizance release dates

43. Considerations relevant to the setting of a parole release date in respect of a sentence imposed for offences of defrauding the Commonwealth were discussed by Spigelman CJ in R v Sweet³² as follows:

"As Badgery-Parker J said in Drazkiewicz:

'There is no tariff which dictates what should be the non-parole period but it is important to remember in determining a non-parole period that it must be of sufficient length to ensure that the sentence reflects the criminality involved and does not lose the very important significant effect of general deterrence ... '

The matter was addressed directly in a joint judgment of this Court in Bernier (at 49) where the court, after acknowledging that no fixed ratios were involved in matters of this character, said:

'Subject to those caveats, the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility enjoined by Hunt CJ at CL in Lawson (1997) 98 A Crim R 463 at 464-465' (emphasis added).

The reference to 'flexibility' in matters of this character must be acknowledged in all such cases because the court is dealing with the exercise of discretion. To suggest that there is some form of 'double counting' involved in taking into account matters on both the head sentence and the fixing of the non-parole period is, in my opinion, to wrongly suppose that mathematical precision is involved in the sentencing exercise and to introduce an undesirable form of inflexibility into the sentencing exercise. A norm is not a rule or fixed ratio."

44. As Spigelman CJ pointed out, "flexibility" is necessary in setting non-parole periods, as discretionary considerations are involved. No doubt his Honour had in mind that the facts upon which the relevant discretion will fail to be exercised are almost infinitely variable. Similar principles are expressed in other decisions, including Bertilone v The Queen,³³ R v Ngui and Tiong³⁴ and R v Harkness.³⁵ The reasons of the Court in R v Ruha, Ruha & Harris; ex parte Commonwealth DPP,³⁶ which was decided after these reasons had been prepared in draft, contains a comprehensive and, if I may respectfully say so, valuable discussion of the Commonwealth sentencing regime and the proper approach to the fixing of pre-release periods under recognizance release orders.

45. In Queensland, as a result of the statutory sentencing regime, "the tendency has been to recognise mitigating factors such as co-operation with the authorities by setting a non-parole date earlier than [the] statutory halfway mark".³⁷ Holmes JA in R v Mokoena,³⁸ concluded that the New South Wales practice of setting non-parole periods, in many cases, between 60 and 66 per cent of the term of the head sentence was most likely the product of the sentencing regimes in that State. Similar factors may well have influenced the determination of non-parole periods in other states. The position in Western Australia is discussed in Bertilone.

46. Counsel for the respondent submitted that it was unlikely that the 60 – 66 per cent range commonly applied in New South Wales had been influenced by current state legislation as some decisions referring to the range (e.g. R v Bernier and R v Stitt) pre-dated the Crimes (Sentencing Procedure) Act 1999 (NSW). He noted that in R**v Ferrer-Esis,³⁹ Hunt J referred to a "recognised pattern of sentencing" of drug couriers involving non-parole periods of 60 – 75 per cent prior to both the Sentencing Act 1989 (NSW) and the introduction of Part 1B of the 1914 (Cth) in 1990. For present purposes, however, it is unnecessary to decide the cause of the differing sentencing practices which exist throughout the Commonwealth: it is sufficient to note the differences and their extent.

[48] Attempts to prescribe the circumstances in which departure from a perceived sentencing norm may be justified may assist in improving consistency in sentencing. But even if such prescription does not impermissibly purport to fetter the exercise of the sentencing discretion, it may distract sentencing judges from properly exercising the sentencing discretion by reference to all relevant considerations.

[49] The following observations of Winneke P, with whose reasons the other members of the Court agreed, in R v Ngui and Tiong,⁴³ are apposite:

"Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice." (footnotes omitted)

Did the exercise of the sentencing discretion miscarry?

[50] Section 16A provides that in determining the sentence to be passed "or the order to be made, … a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". Section 16A(2) requires a sentencing court to take into account the matters listed in paragraphs (a) to (p) inclusive. The more relevant of these provisions for present purposes are:

"(a)the nature and circumstances of the offence;

…

(f)the degree to which the person has shown contrition for the

offence:

(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)in any other manner;

…

(m)the character, antecedents, age, means and physical or mental condition of the person;

(n)the prospect of rehabilitation of the person;

…"

[51] The applicant is in very bad health and is aged 60. Plainly, her physical condition will cause her much greater than usual hardship in serving a term of imprisonment. There was no suggestion by the prosecution at first instance that the applicant lived in other than modest circumstances and defence counsel's statements that the applicant had been on a disability pension as a result of her emphysema since she was 39 years of age and remains on such a pension was not disputed. These were matters relevant to the fixing of a recognizance release date.

[52] It appears to me, with respect, that the learned primary judge, in fixing the recognizance release date applied what he perceived to be a "norm" or "standard" rather than giving due consideration to factors relevant to the exercise of his discretion. He also proceeded on the mistaken belief that there had been a recent change in the applicable sentencing regime. The sentencing discretion thus miscarried and this Court must exercise the sentencing discretion afresh. A head sentence of three years was plainly supported by the comparable sentences to which the primary judge was referred: neither counsel contended to the contrary.

[53] Counsel for the respondent submitted that Robertson supported a three year sentence with the existing recognizance release date. In Robertson, the offending conduct occurred over a 26 year period. The amount involved was only slightly higher than in this case and the applicant was a 67 year old invalid pensioner. She suffered from "a range of medical conditions and pleaded guilty". As I previously noted, her release date after 15 months imprisonment was reduced on appeal to a date 12 months after the date of her sentence.

[54] On the material before this Court, it is difficult to compare the extent of the disability of the offender in Robertson with that of the applicant and the bearing their respective disabilities will have on the hardship imposed by serving a prison sentence. I consider that there is something in the point made by counsel for the applicant that the many and varied serious ailments afflicting the applicant will impose very considerable problems for her in managing her medication and maintaining what little remains of her health. There is also the consideration, absent in Robertson, that the applicant commenced a program of repayment of the moneys fraudulently taken.

[55] Counsel for the respondent referred the Court to observations of King CJ in R v Smith⁴⁴ and in R v de Vroome⁴⁵ concerning the relevance to sentencing of an offender's health. In R v de Vroome, King CJ said:⁴⁶

"The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment."

[56] Taking those matters into account and bearing in mind the many statements in the authorities concerning the need for the imposition of sentences which provide effective general deterrence against social security fraud,⁴⁷ it is my view that the mitigating factors to which I have referred make appropriate a three year term of imprisonment with a recognizance release date fifteen months from the date of sentence.

[57] Accordingly, I would: grant leave to appeal against sentence; allow the appeal; set aside the sentences imposed at first instance, but not the reparation order; substitute, on each count, sentences of three years imprisonment with an order directing that the applicant be released on 4 December 2010, upon her giving security by recognizance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years. I would also direct that the applicant's legal representatives explain the following matters to her:

a) she has been sentenced to three years imprisonment but the Court has ordered that she be released after serving 15 months upon her entering into a bond of $2,000;

b) the purpose of that order is to enable her to be released earlier that the full term of her sentence and to provide her with the opportunity to carry out the balance of her punishment in the community;

c) the bond is conditional upon her being of good behaviour, if she does not comply with its conditions, she may be brought back to Court and dealt with and depending on the nature of the breach, she may be required to serve the balance of her unserved period of imprisonment in prison; and

d) the terms of the bond may be varied or discharged, in appropriate circumstances, at any time during the period of the bond.

[58] ATKINSON J: There are a number of sentencing principles that judges must balance in the often difficult task of sentencing an individual offender for a specific crime. Sentencing is never a rigid mathematical exercise. In the case of offences against Commonwealth law, where the court is exercising federal jurisdiction, the general sentencing principles are set out in Div 2 Part 1B of the Crimes Act 1914 (Cth).

[59] The principal requirements of the sentence are that the sentence be of a severity appropriate in all of the circumstances (s 16A(1)) and that imprisonment may be imposed by the court only if it is satisfied that no other sentence is appropriate in all of the circumstances of the case (s 17A(1)).

[60] Section 16A(2) of the Crimes Act sets out a non-exclusive list of matters which are relevant to imposing the appropriate sentence. These include the nature and circumstances of the offence or offences (s 16A(2)(a), (b) and (c)), the effect of the offence on the victim (s 16A(2)(d) and (e)), and factors relevant to the particular offender (s 16A(2)(f), (fa), (g), (h), (j), (k), (m), (n), (o) and (p)).

[61] As well as the matters set out in the statute, there are a number of other sentencing principles which are relevant in determining the sentence to be imposed. Whether the sentence imposed is for an offence under State or Commonwealth law, two relevant factors which are not found in the appropriate statutes, are parity between co-offenders and consistency in sentencing across the range of offences and offenders. The application of these principles ensures that the sentencing discretion exercised by the sentencing judge is not idiosyncratic. The sentence is tailored to the individual offender, victim and offence but is part of a consistent pattern of sentences imposed.

[62] In the exercise of sentencing discretion for federal offenders, the sentencing judge should take into account sentences imposed across Australia and particularly the decisions of intermediate appellate courts and the High Court. This need to ensure systemic fairness was neatly encapsulated by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at 591:

"The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."

[63] Taking all of those factors into account in this case, particularly the nature and circumstances of the offence, factors relevant to the particular offender, such as her age, ill health, lack of a criminal record, but lack of contrition, and sentences generally imposed for similar offending, for the reasons given by the President and Muir JA, the sentence imposed was manifestly excessive.

[64] The application for leave to appeal against sentence should be granted, the appeal allowed, the sentences imposed at first instance set aside and replaced with the sentences proposed by Muir JA.

Footnotes

1. Cf Neal v The Queen (1982) 149 CLR 305. ↩

2. R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10. ↩

3. Above, [47] and Muir JA's reasons in this case at [42]-[43]. ↩

4. [2009] QCA 23. ↩

5. Above, [14], see sub-para 3(b)(ii). ↩

6. R v Ruha, Ruha & Harris; ex parte Cth DPP, [44]. ↩

7. [2009] QCA 208. ↩

8. [2009] QCA 23. ↩

9. [2009] QCA 23 at [18]. ↩

10. [2009] QCA 208 at [30] – [40]. ↩

11. R v Sweet (2001) 125 A Crim R 341; R v Martinsen [2003] NSWCCA 144; Bick v R [2006] NSWCCA 408 and Grenfell v R [2009] NSWCCA 162. ↩

12. (2008) 185 A Crim R 441. ↩

13. [2003] QCA 281. ↩