Court of Appeal (Qld)|2007-02-13|Before: de Jersey CJ, Jerrard and Holmes JJA, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
de Jersey CJ, Jerrard and Holmes JJA, Separate, reasons for judgment of each member of the Court, each concurring as to the
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
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– GENERALLY – whereapplicant failed to disclose to Centrelinkdetails regarding marriage status – where applicant obtained Centrelinkbenefitsunder a false name – where applicant convicted of two counts ofdishonestly obtaining a financial advantage by deception contraryto s 134(2)(1)of the Criminal Code Act 1995 (Cth) – where applicant had repaidalmost a third of amount owing – where applicant claimed psychologicalproblems –whether sentence of three years to be released on recognisanceafter nine months was manifestly excessiveCriminal Code Act 1995 (Cth), s 134(2)(1)R v Carter [2005]QCA 402, CA No 257 of 2005, 3 November 2005,considered
R v Edwards
ex parte Commonwealth DPP [2001] QCA
93, CA No 314 of 2000, 14 March 2001, considered
R v Grice
[2006]
QCA 326, CA No 138 of 2006, 31 August 2006, considered
R v Hurst
ex parte Commonwealth DPP [2005]
QCA 25, CA No 387 of 2004, 14 February 2005, considered
R v
Otto
ex parte Commonwealth DPP [1998] QCA 139, CA No 415 of 1997, 26 February 1998, considered
R v
Smith [1999]
QCA 518, CA No 299 of 1999, 15 December 1999, considered
R v
Smith [2004]
QCA 417, CA No 358 of 2004, 5 November 2004, considered
Judgment (23 paragraphs)
[1]
Commonwealth Director of Public Prosecutions for the respondent
[2]
THE CHIEF JUSTICE: I invite Justice Holmes to deliver the first judgment.
[3]
HOLMES JA: The applicant for leave to appeal against sentence was convicted on his own plea of guilty of two counts of dishonestly obtaining a financial advantage by a deception contrary to section 134(2)(1) of the Criminal Code Commonwealth.
[4]
He was sentenced to three years imprisonment to be released after nine months on entry into a recognisance in the sum of $5,000 for a period of three years. A further order was made that he make reparation to the Commonwealth in the sum of $18,035.35.
[5]
The first of the counts related to the applicant's receipt of Newstart allowance in his own name from 1 December 2002 until 29 March 2005. He claimed on Centrelink forms (it is not clear how many) that he was not married, when in fact he had married on 1 December 2002. The false representation meant that he was paid benefits at the higher rate applicable to a single person. As well, from 9 August 2004, the applicant was employed as a security guard, a fact which he did not disclose to Centrelink. By those deceptions, he obtained $9,800.37 to which he was not entitled.
[6]
The second count related to the applicant's having applied on 2 March 2004 for a Newstart allowance in a false name, Harry Mangos. He received benefits under that name until 8 May 2004. In that time he completed 11 review forms on which he used the false name, misrepresented his status as single and claimed, on all but one of them, that he had not worked. On the remaining form, he disclosed employment which was not his true employment. In this instance, he obtained $10,923.13 to which he was not entitled.
[7]
The plea of guilty was a late one. There had been a committal hearing at which all Crown witnesses were cross-examined. The case was listed for trial and the respondent flew witnesses from New Zealand and other parts of Australia to Southport. On the day of trial the applicant and his wife, who was charged with separate but related offences, dispensed with the services of their legal representatives. The trial was adjourned to the next day. On that day, pleas of guilty were entered and the matter later proceeded to sentence. The prosecutor at sentence submitted that minimal remorse had been shown, and, moreover, that while the proceedings were pending the applicant had been abusive and aggressive to Centrelink staff members.
[8]
The applicant had a criminal history in New South Wales which included traffic offences and assault and, more significantly, one charge of larceny as a servant for which he was placed on community service, and 24 counts of obtaining money by deception for which he was ordered to pay compensation of some $1,500 and costs. In Queensland, he had one conviction under the name Harry Mangos for stealing as a servant, in respect of which, on the 20th of September 2004, he was placed on 12 months probation. For the entirety of that probation period he was in the process of committing the two offences with which this Court is now concerned.
[9]
The total amount overpaid was $20,723.50. $2,688.15 had already been repaid by the date of sentence. With a loan of a friend, a further $6,494.59 was paid immediately after the sentence, leaving an amount outstanding of $11,540.76.
[10]
The applicant was 32 years old at the date of sentence. His counsel informed the Court that he was addicted to gambling. A general practitioner's report described him as suffering from depression. A number of references was tendered, which indicated that he was a devoted father and hard worker. At the time of sentence, he was working as a cleaner - a reference was tendered from his employer - and he had an offer of another job. He and his wife had separated since the offending, and she had the care of their 12 month old child. His solicitor submitted that if he were to be imprisoned he would lose his mortgaged house, and his wife and child would lose the benefit of his financial support, the extent of which was not made clear.
[11]
The learned sentencing Judge observed that little in the applicant's behaviour demonstrated remorse. He noted the previous offences of dishonesty and that the applicant was on probation for such an offence over some of the period of the charges. Taking into account the mitigating factors, including what was contained in the references, he concluded that a prison term was nonetheless called for. He expressed himself unconvinced that the depression the applicant suffered amounted to a mental illness, but accepted the applicant might have had some psychological problems, including a predilection for gambling, which gave some basis for mitigation. He noted also the repayment made at the date of sentence and said he specifically took into account also the funds made available from which further payment could be made after sentence.
[12]
The Crown relied on two previous decisions of this Court, R v Smith[1999] QCA 518 and R v Smith[2004] QCA 417. In the first, the applicant had claimed benefits in three different names over three years and obtained an amount of $32,416.78. There was no restitution. The applicant there had a lengthy criminal history with a number of convictions for offences of dishonesty, but he had also made what the Court described as "commendable efforts at rehabilitation", had cooperated with investigators and had pleaded guilty on an ex officio indictment. He was sentenced to two and a half years imprisonment with an order for release after 12 months on a recognisance, that sentence concurrent with another sentence he was serving for an unrelated matter. The Court dismissed his application for leave to appeal against that sentence.
[13]
In the second of the Smith cases relied on, the applicant had pleaded guilty at an early stage to one count of defrauding the Commonwealth and one count of dishonestly obtaining financial advantage. He had no prior criminal convictions. While in receipt of various forms of benefit legitimately, he made a fraudulent application for a Newstart allowance in a false name. That was done at the instigation of another person who threatened to disclose matters which would affect the applicant's relationship with his partner; the instigator received all of the money dishonestly obtained, an amount of some $30,000. Only a small amount had been repaid. The Court accepted that the offence was not permitted for personal financial gain and that the applicant had been depressed at the time he first became involved in it. An application for leave to appeal against a sentence of imprisonment of two years with release on recognisance after three months was dismissed.
[14]
The applicant relied on a number of appellate decisions, essentially on the basis that in those cases larger amounts had been obtained by the persons receiving benefits illegitimately. There are, however, in each of those, other factors which bear on the sentence ultimately imposed.
[15]
The first of the cases relied on was R v Edwards;ex parte Commonwealth DPP[2001] QCA 93. In that case, as in this, a false name was used. The sentence which had been imposed initially was two and a half years imprisonment, immediately suspended. The Court of Appeal substituted a sentence which involved suspension after a period of six months. However, it is to be noted that the Court took into account two particular factors: the fact that the respondent had the responsibility of two children and that by virtue of the initial sentence she had been placed on probation from the date of sentence and had performed satisfactorily on it. As a result of those factors, the Court said specifically, the term of imprisonment should be limited to six months, rather than a heavier sentence which would otherwise have been justified.
[16]
The second of the cases referred to was R v Hurst;ex parte Commonwealth DPP[2005] QCA 25. That, again, was an appeal by the Commonwealth Director of Public Prosecutions. Again, the sentence was varied by deleting a part of the order which enabled the respondent there to be released forthwith, and an order that he serve six months actual imprisonment was substituted. The head sentence was three years imprisonment. It is true that the amount involved in Hurst was considerably greater, $79,000-odd with reparation of $20,000. On the other hand, Hurst was 60 years of age. The Court said that, but for the fact that it was a DPP appeal such as to require moderation, the fact that the applicant had the anxiety of the appeal, and the fact that during the period pending the appeal he had continued to pay further reparation, it would have been appropriate to impose a period of actual imprisonment of nine to 12 months before release. Given those factors, however, the six months actual imprisonment was imposed.
[17]
The third case referred to was R v Otto; ex parte Commonwealth DPP[1998] QCA 139. This case, in fact, involved criminality of a quite different nature. The applicant had been in a de facto relationship and her mother had been the primary carer for her child, circumstances which she did not disclose when they arose to the Department; so that notwithstanding that a very considerable sum of the order of $100,000 was thus obtained. The criminality involved in that case seems very different from that here, where two benefits were obtained, one in a false name. In that case, it was pointed out that the money was used specifically for the care of the respondent's child; the Court referred at length to very significant health factors; and it was, again, an appeal by the Commonwealth Director of Public Prosecutions, with the attendant considerations. The sentence of 18 months' imprisonment with immediate release was not disturbed.
[18]
The next of the appellate cases referred to was R v Carter[2005] QCA 402. In that case, the applicant for leave to appeal against sentence had received, by his offending, $54,240.91. He was sentenced to two and a half years' imprisonment with release after 10 months. That was a false name case. A very significant factor, however, was that full restitution had been made in that case by the date of sentence.
[19]
The last of the cases referred to was R v Grice[2006] QCA 326. There the applicant had obtained a very significant amount, $68,355.05. He was sentenced to three years' imprisonment with release after eight months. Significantly, however, it was not a false name case. The applicant had failed to advise Centrelink that he was married to a woman who received an income. It is also worth noting that he was 69 years of age.
[20]
It seems to me that every one of those cases contains a factor which distinguishes it in some way from the present, and explains the sentencing which was, in each case, adopted or approved.
[21]
Both of the Smith cases referred to by the Crown, as this does, involve not merely a failure to disclose changes in circumstances to Centrelink, but the much greater criminality of obtaining benefit in a false name. The sentences upheld in the two Smith cases demonstrate, as do, in my view, the cases referred to by the applicant, that the head sentence here was not excessive.
[22]
The applicant already had some criminal history, albeit not sufficiently serious to attract imprisonment for dishonesty, and this offending occurred while he was on probation. There was certainly not as much to be said for him by way of mitigation as in some of the other cases; as in, for example, the second of the Smith cases. The plea of guilty was entered at the last possible minute. The factors in mitigation, such as they were, including the repayment of something under a third of the money obtained and the fact that the applicant had some psychological problems, were appropriately recognised by the order for release on recognisance after nine months.
[23]
The sentence, in my view, represented a sound exercise of the sentencing discretion. I would dismiss the application for leave to appeal.