Court of Appeal (Qld)|1998-02-26|Before: Fitzgerald P, Davies JA, Fryberg J

R v Otto & Commonwealth Directore of Prosecutions [1998] QCA 139 (26 February 1998)

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Appellant

The sentence imposed by the trial Judge was one of 18 months imprisonment with an order that the respondent be released immediately upon giving security by recognisance in the sum of $750 that she be of good behaviour for four years.

The essence of the appellant's submissions was that a period of actual imprisonment should have been imposed and it was said that the appropriate sentence would have been 18 months to two years imprisonment to be released after serving six months upon giving a recognisance such as that ordered by the sentencing Judge.

At the time of sentence Ms Otto was 37 years of age. Almost 20 years ago when she was only 16 years old Ms Otto gave birth to a boy who remains her only child. The father was a person with whom Ms Otto had a brief relationship which did not continue in the involvement of the father into any role as a parent.

Later that year in August 1978 Ms Otto made a claim to the Department of Social Security to receive a supporting parent's benefit and she continued to claim that benefit for as long as her child's age made her apparently eligible which is until 1992.

Ten of the 11 charges to which Ms Otto pleaded guilty relate to the supporting parent's benefit. Her impositions upon the Commonwealth lie in two facts. Firstly that her circumstances changed and she took up a de facto relationship which lasted until her de facto husband died in prison in 1994, but she did not inform the Department of Social Security of this fact when making her claims. And secondly at all times from the commencement of her parenthood, it seems, the child was treated as another member of Ms Otto's mother's family.

The child was welcomed into the family especially because Ms Otto's mother's own son, Ms Otto's brother, had been killed in a motor cycle accident just one year prior to Ms Otto's son's birth.

It seems not to be disputed that all the money received by Ms Otto was provided to her mother for use in rearing the boy, Ms Otto's mother's grandson. The untrue representations, it was accepted, were made out need not greed, and Ms Otto did not gain from them personally in any way.

It may also have been accepted, it seems, that following the death of Ms Otto's father in 1979, again in a road accident,

Ms Otto's mother might and perhaps would, I should say, have been entitled to receive similar support as a supporting parent's benefit to rear the boy.

The final charge related to a different benefit, a disability support pension, which Ms Otto first claimed in March 1992 without stating that she was in a de facto relationship, a circumstance which would have been the occasion of disentitlement.

The total sum of the incorrectly claimed payments was a little in excess of $100,000. The precise breakdown between the supporting parent's benefit and the disability support pension does not seem to have been established in the evidence, nor is it clear whether there was any explanation for the offence relating to the disability support pension. It seems to have been accepted that the bulk of the Commonwealth's loss related to the supporting parent's benefit and the matter appears to have proceeded on that basis.

The discrepancies that constituted the offences were first detected in late 1995. Proceedings were commenced in

August 1996, but more than six months prior to that - that is January 1996, the respondent had already agreed to commence some small effort to repay some of the money in the former withholding by the Commonwealth from the benefit to which it was agreed she had since been entitled.

At the date of sentence repayment totalled only $2,268.20, but nevertheless some effort has been made and, given Ms Otto's circumstances, it is apparent that she could have paid little more. From the very outset the respondent indicated that she would plead guilty to the charges and although there was some delay she did persist in that attitude.

Reference was made to Ms Otto's medical condition and significant material was placed before the sentencing Judge which was not disputed by cross-examination of the doctors. It seems, for example, from a statement made before the sentencing Judge for counsel then appearing for the respondent, that in 1996 she was visiting one of the many doctors she needed to consul about every nine days, and in 1997 she was receiving medical treatment even more frequently.

I will refer briefly to some of the extracts from the medical reports because they give an insight into her condition.

Dr Hamilton, for example, the medical director of a medical centre at Kedron Park, lists her medication, some of her conditions and some of her symptoms and notes that she is treated by a dermatologist, a neurologist, a rheumatologist, a respiratory physician, a cardiologist and gastro-enterologist.

"Many of her problems are on-going and require the intermittent review by her treating specialists. She suffers from chronic small joint arthritis and myalgia. She suffers from excessive scarring with minimal trauma. She gets short of breath very easily and may have a developing pulmonary fibrosis. She should give up smoking if she has not already done so. She has Raynaud's phenomenon causing her hands to go blue when cold. She has a pacemaker which requires intermittent review. The prognosis of the above conditions is that control is the aim of therapy to prevent deterioration, but gradual deterioration is expected.

She has hepatitis C which leads eventually to liver sclerosis in the long term. It should also be noted that her body fluids are infectious. If this lady is imprisoned it would desirable if she could maintain contact with her treating specialists. She has generalised arthritis and fragile skin and would need to be careful that any activities that are undertaken were selected carefully. She has Raynaud's syndrome and should always keep her hands warm. In addition to the above her husband committed suicide while incarcerated some years ago and I believe there would be a significant suicide risk if this lady was imprisoned."

As I said, no attempt was made to cross-examination the

doctors. Doctor Hoskin, another general practitioner gave a report dated 14 July 1997 which includes the following passages:

"Ms Otto has several significant medical conditions;

(1) chronic obstructive airways disease with a reversible component, ie asthma;

(4)she takes Carbamazepine for an EEG abnormality although I am not aware she has ever had actual seizures;

(5)Ms Otto also has fibromyalgia-type symptoms and although lupus erythematosus has been suggested no definite diagnosis has been made for her aching limbs;

(6)Ms Otto also has chest pains which have never been definitively diagnosed. However she does have some oesophageal ulceration under normal exercise thallium tests."

"Ms Otto's major problem by far is her chest which is going to cause increased problems especially with continuing smoking. She has reduced biometry and infrequent infected exacerbations. The long term prognosis for her chest is poor. Ms Otto requires annual pacemaker check review and may ultimately need a revision or battery change for the pacemaker.

Overall Ms Otto's prognosis for all, apart from her chest, is good. Her cardiac problems are controlled and joint, hepatic and oesophageal disorders are satisfactorily controlled. It is possible her hepatitis C may cause hepatitis in the future.

Imprisonment will certainly adversely affect this lady. She suffered a gross emotional upset when her de facto suicided in prison and she is having difficulty ceasing smoking. This will be much harder in prison as she suffers a great of stress at present and incarceration will aggravate this. Ms Otto has many major medical problems and incarceration would be to the detriment of her health."

The only other passage which I will read is a passage from the report dated 15 July 1997 of a neurologist, Dr Paul Sanstrum. Dr Sanstrum said:

"Her medical history is extremely complex and her treatment needs are likely to be on a longer term basis and additionally it is necessary that she consult numerous specialists including myself, a rheumatologist, a gastro-enterologist, a hepatolgist and a thoracic physician. In my opinion it would be extremely difficult to orchestrate and manage such therapy in the event that Ms Otto were to be incarcerated."

Usually, but not inevitably, a period of actual imprisonment will be imposed for offences such as those committed by the respondent. Despite the mitigating factors, in my opinion, the respondent was treated leniently by the sentencing Judge. However, I am also of the opinion that that leniency is not such as to warrant this Court's interference. I would dismiss the appeal.

R v Otto & Commonwealth Directore of Prosecutions [1998] QCA 139

At a glance

Court

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Before

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Judgment (36 paragraphs)

R v Otto & Commonwealth Directore of Prosecutions [1998] QCA 139 (26 February 1998)

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