R v Pham [2014] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION: R v Pham [2014] QCA 287

PARTIES: R v PHAM, Kitty Thanh Nguyen (applicant)

FILE NO/S: CA No 179 of 2014 / DC No 531 of 2014

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 18 November 2014

DELIVERED AT: Brisbane

HEARING DATE: 23 October 2014

JUDGES: Gotterson and Morrison JJA and McMeekin J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Leave granted to appeal against sentence.Appeal allowed.The sentence imposed at first instance is varied to order the release of the applicant after serving six months imprisonment.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleas of guilty to two counts of obtaining a financial advantage by deception – where the applicant was sentenced to three years imprisonment to be released after serving nine months of that term – where the applicant was subject to threats and intimidation at the time of committing the offences – whether the sentence imposed is manifestly excessive / Crimes Act 1914 (Cth), s 4AA, s 4B, s 16A / Criminal Code Act 1995 (Cth), s 10.2, s 134.2 / Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, considered / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215, considered / R v Barton [2006] QCA 18, cited / R v Carter [2005] QCA 402, cited / R v Frame [2009] QCA 9, cited / R v Grice [2006] QCA 326, cited / R v Holdsworth [1993] QCA 242, cited / R v Hurst; ex parte Commonwealth DPP [2005] QCA 25, considered / R v Hutchinson [2010] QCA 22, cited / R v Lovel [2007] QCA 281, cited / R v McMillan [2005] QCA 93, cited / R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered / R v Oag [1993] QCA 225, cited / R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440, considered / R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited / R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; (2010) 198 A Crim R 430; [2010] QCA 10, cited / R v Trocko (1988) 142 LSJS 412, considered / Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited / R v Z [2005] 2 AC 467; [2005] UKHL 22, cited

COUNSEL: The applicant appeared on her own behalf / P C Floyd for the respondent

SOLICITORS: The applicant appeared on her own behalf / Director of Public Prosecutions (Commonwealth) for the respondent

1. GOTTERSON JA: I agree with the orders proposed by McMeekin J and with the reasons given by his Honour.

2. MORRISON JA: I have read the reasons of McMeekin J and agree with those reasons and the orders his Honour proposes.

3. McMEEKIN J: This is an application for leave to appeal a sentence imposed in the District Court on 6 June 2014.

4. The applicant pleaded guilty to two counts of obtaining a financial advantage by deception contrary to s 134.2 Criminal Code Act 1995 (Cth). The maximum penalty for each offence was 10 years imprisonment or a fine not exceeding $66,000 or both: ss 4AA, 4B Crimes Act 1914 (Cth); s 134.2(1) Criminal Code Act 1995 (Cth). The statutory sentencing regime under which the applicant was sentenced was set out in detail by this Court in R v Ruha, Ruha & Harris; ex parte Cth DPP.¹

5. In respect of each of the counts the applicant was sentenced to three years imprisonment to be released after serving nine months of that term. The terms were to be served concurrently. The release was conditional upon giving security by recognizance in the sum of $1,000 and to be of good behaviour for a period of three years. The applicant was ordered to pay reparation to the Commonwealth in the sum of $126,488.58.

6. The applicant contended that the sentence was manifestly excessive. She was not represented on this application, had poor English skills and due to her ignorance of the relevant principles made no useful submissions, save that she re-iterated the promise made to the sentencing judge by her counsel that she intended to make full reparation.

7. As will be seen I have come to the view that the application should be allowed and a different sentence imposed. That is so because of the quite peculiar circumstances that lay behind the offending conduct and despite the very serious criminality involved in that conduct.

8. Effectively the applicant, who, according to references tendered and other objective facts advanced by her counsel, was a person of otherwise good character and standing, was at the material time subjected to threats and intimidation from a violent former partner to supply to him large sums of money to support his drug habit. The issue is whether, bearing that feature of the case in mind, the sentence was “unreasonable or plainly unjust,” that being the test under House v The King.² I have come to the view that it was.

The offences for which the applicant was sentenced

9. The fraud that the applicant perpetrated was done in two different ways and hence the two counts. In the first instance she falsely claimed a sole parent pension to which she was not entitled. She was overpaid $71,588.14. She was initially entitled to that pension until she commenced employment in August 2007. The deception then extended over four years and 10 months.

10. In the other the applicant claimed Newstart Allowance to which she was not entitled. She was overpaid $54,900.44 on that count. The deception there commenced during the time she was falsely claiming the sole parent pension and extended, as in her first count, until her apprehension in July 2012.

11. The total amount involved in the deceptions was $126,488.58.

12. Quite apart from the amounts and the extended periods of the frauds there were other worrying features. To avoid detection the applicant used different aliases when making her claims – Thuy Thi Tanh Nguyen with her actual date of birth in the one offence and Thi Tanh Nguyen with a different date of birth in the other.

13. To perpetrate the deception involved in the first count the applicant falsely declared on a monthly basis that she was not earning income – in fact over the near five year period that the offending occurred she earned $283,154.75. She declared only $160 of that amount.

14. To perpetrate the second deception the applicant failed to declare that she was already receiving the benefit mentioned in the first count.

15. The offences were detected by way of a tip-off from a member of the public made in January of 2012. This led to an investigation. The applicant attended separate “payment review interviews” under the guise of her two aliases, known on the Centrelink files as two separate customers. The first was held on 30 March 2012 and the second on 26 April 2012.

16. Investigations revealed that the applicant’s mother’s Certificate of Australian Citizenship was on file for both Centrelink records and that there were numerous bank accounts held in various versions of the applicant’s name.

The Personal Circumstances

17. The applicant was born in Vietnam. She was aged 28 through to 32 years during the period of the offending. She is presently 35 years of age. She is the mother of two children aged 19 and 17 at the time of sentence.

18. The applicant had prior criminal history. In 2000 she had been dealt with for attempted criminal deception, obtaining property by deception, stealing and unlawfully damaging property. She was sentenced to imprisonment for a little over five months and a community service order was imposed.

19. There was an early plea of guilty to the counts here, albeit it would seem in the face of a strong prosecution case.

The prosecutors submissions at first instance

20. The prosecutor, in her submissions, pointed to the continuous and deceptive offending of the applicant, the prolonged period for which it was carried on, and the amount of the fraud. It was submitted that there was a degree of sophistication, given that the defendant was aware of her obligations and had attended Centrelink under both variations of her name even when under investigation.

21. The prosecutor made the submission that due to the fact this was a “dual claim” – that is the applicant claimed two benefits to which she was not entitled – this case was in a more serious category than some.

22. The prosecutor also pointed to the applicant’s prior criminal history and that, as at sentence, no repayment had been made of the debt. She did acknowledge the early plea of guilty and that the applicant was going through difficult personal circumstances at the time of the offending.

The applicant’s submissions at first instance

23. The applicant’s counsel submitted that the offending conduct took place against a background of significant pressure during the period of the offending from the applicant’s ex-partner to provide him with money.

24. A psychologist’s report was tendered. The report spoke of mental health symptoms including hallucinations as well as anxiety, depression and stress. The report detailed that in the lead up to the offences, the applicant experienced persistent harassment and bullying by her ex-partner and his family. The applicant relayed to the psychologist that her ex-partner frequently stalked her and threatened to take away her children, using this to intimidate her into financially supporting him and thus his drug use. The applicant’s statements to the psychologist were that she would give her ex-partner anywhere from $600 to $1,000 a week. The report also detailed that the applicant accepted responsibility for her offending and that she had insight to the impact on the community.

25. Counsel for the applicant submitted that the applicant was remorseful and had begun making repayments to the Commonwealth, albeit in respect of a different matter.

26. Comparatives were drawn with the applicant’s offending and the cases of R v Lovel [2007] QCA 281 and R v Robertson [2008] QCA 164. Counsel ultimately submitted that a sentence of three years imprisonment with a release on a recognizance after a period of nine months should be imposed. The reparation order was not opposed.

The sentencing remarks

27. As to the offending conduct the learned sentencing judge expressly mentioned:

the serious nature of the offending occurring over a five year period;

that it involved a large amount of money;

that the applicant had made numerous false statements;

that there was no voluntary disclosure;

that the applicant had a prior criminal history which was relevant;

that general deterrence was an important sentencing consideration;

that he had regard to the factors in s 16A of the Crimes Act 1914 (Cth).

28. In mitigation of sentence the learned sentencing judge:

acknowledged that the applicant had facilitated the course of justice by her early plea and full hand up committal without cross examination of witnesses;

expressly referred to the applicant’s personal circumstances and mental condition as explained in a psychological report tendered;

brought into account the references tendered that spoke well of the applicant’s character;

accepted that the applicant had been involved with charity work in the community which should not be overlooked;

held that there was a realistic hope for rehabilitation; and

remarked that a reparation order was appropriate given that the applicant was prepared to accept her responsibilities.

29. Importantly the learned sentencing judge found that the applicant’s partner was a violent man, who forced the applicant to make payments to him at the time of the offences and that through this time the applicant was endeavouring to raise her two children, obviously without assistance.

Discussion

30. In my view there can be no complaint that the learned sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration. The use of false identities, the large sums involved, the repeated false statements, and the extended period of time over which the deceptions were practised all demanded recognition. The three year sentence imposed was fully merited. This was a serious case of fraud. Many decisions of this Court make plain that in circumstances like these a custodial sentence is usually justified and indeed required: R v Holdsworth [1993] QCA 242, R v Hurst*;* ex parte Commonwealth DPP [2005] QCA 25, R v Grice [2006] QCA 326, and R v Lovel [2007] QCA 281.

31. However what his Honour has not done is explain how it is that he arrived at the nine month non parole period³ and how he determined that that period involved a sound exercise of his discretion given that the cause of the offending conduct lay in the overbearing violence of a criminal.

32. I interpose that given that such a claim can easily be made and is difficult to disprove I should record that the existence of the violent overbearing partner was not merely based on the applicant’s self report but was supported by the letter tendered from her co-worker,⁴ and, to a degree, the letter from her son.⁵ It was, as I have said, a fact not in dispute.

33. That feature is not present in any case to which we were taken and seems to me to deserve special consideration going as it does to the heart of the culpability of the applicant.

34. Combined with that point is the consideration that the personal circumstances here while not unique are nonetheless demanding of considerable sympathy. The learned sentencing judge made it plain that he was aware of these matters but they merit repeating. According to a psychiatrist the applicant lacked the skills to cope with the intimidation to which she was subjected.⁶ The applicant appears to have had a singularly tragic life with reports of an abusive violent alcoholic father, her first child born when she was 14 years of age, pregnant with her second child at 17 and homeless, a rape at age 18, then a 10 year period of “hell” with drug use, isolation and harassment by her violent, and eventually ex, partner. There were then persistent mental heath concerns with numerous suicide attempts.

“In the light of the cases and the submissions made by the Prosecutor – and those cases are the subject of exhibit four – I am of the opinion that there can be no other sentence but imprisonment in relation to offending such as this. So in spite of section 17A, I will be, in due course, making an order for imprisonment, but there will be arelease after having served nine months, and I’ll go into that in alittle more detail in a moment.”⁸

36. Despite that last remark, His Honour did not make any further reference as to how he arrived at the non parole period.

37. In many cases there could no complaint about the nomination of a non parole period in this way. But here the comprehensive and, if I might say, helpful submissions of the Commonwealth prosecutor made clear that the non parole period can vary widely from case to case, even where the features of the fraud involved are, as here, very serious. In some cases that period has been set well under the nine month mark chosen here, and in circumstances not necessarily more deserving than here.

38. Before turning to those cases to which we were taken I will make some general observations on the principles that apply.

The Relevant Principles

39. A sentencing judge has a wide discretion when it comes to setting the non parole period.⁹ But equally it is important that there be some reasonable consistency in the approach taken to sentences: Wong v The Queen.¹⁰ It is trite to observe that circumstances differ widely and personal circumstances are relevant.

40. Thus in R v Oag¹¹ the Court observed:

“The need for deterrence must be balanced against the applicant’s personal circumstances, including his remorse and the problems which his family were experiencing at the time.”

41. In R v Ruha, Ruha & Harris; ex parte Cth DPP¹² this Court wrote:

“Part 1B of the Crimes Act, under which sentencing judges are given a discretion to direct release on recognizance at any time from the commencement to the end of the term, is consistent with the application of the general principle that material differences between particular cases might justify materially different sentences, including in the specification of the pre-release period.”

42. Buss JA in Bertilone v R¹³ summarised the considerations relevant to setting the non parole period:

“[P]rovisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; 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; and relevant factors to be taken into account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence.”

43. I am of course conscious that his Honour adopted the period suggested by defence counsel but apart from that there seems no other reason for the imposition of the period adopted. As has frequently been said¹⁴ an applicant has some difficulty in persuading this Court that a sentence is manifestly excessive when it is conformity with the submissions made below. But that presupposes that the submissions recognise the importance of the relevant factors – that the submission is an informed one. There was no reference to the factors that I am about to mention in the submissions made to the learned sentencing judge.

44. It has long been recognised under the common law that persons who act under fear or from threats may be considered to be less culpable than an offender who is not under pressure to offend.¹⁵ Section 10.2 Criminal Code Act 1995 (Cth) contains the test for Commonwealth offences. There is no suggestion here that the applicant was entitled to a defence but that does not mean that the facts relating to the duress to which she was subject are not capable of being a mitigating factor on penalty: R v Oblach [2005] NSWCCA 440 at [69]–[70] per Spigelman CJ, Sully and Hulme JJ agreeing on this point. In adopting that principle in Tiknius v R [2011] NSWCCA 215 at [36] Johnson J added this observation, with which I respectfully agree:

“There is no reference in s 16A Crimes Act 1914 (Cth) to duress as a factor to be taken into account on sentence for a Commonwealth offence. However, a Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1). The Court must take into account the nature and circumstances of the offence (s 16A(2)(a)) and the need to ensure that the person is adequately punished for the offence (s 16A(k)).”

45. The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in R v Trocko (1988) 142 LSJS 412. His Honour said at [4]:

“I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjection or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequences that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty must depend upon the circumstances of the particular case.”

46. Bearing those principles in mind I turn to the decisions to which we were taken.

Comparable Cases

47. Cases involving frauds on the Commonwealth with non parole periods roughly comparable to that imposed here include R v McMillan [2005] QCA 93 (nine months), R v Carter [2005] QCA 402 (10 months), R v Lovel [2007] QCA 281 (nine months), R v Barton [2006] QCA 18 (10 months) and R v Grice [2006] QCA 326 (eight months). A close comparison of the facts between each of those decisions and this case is not needed. In none of those cases were the personal circumstances anywhere near as compelling as here. It is true that in every case the amounts involved were less than the present case, but that is not the only relevant matter.

48. The prosecutor submitted that this case was akin to the gambling addiction cases but in my view the gambling addiction cases do not merit the sympathy that this applicant should be given. That is so because both the moral culpability and the prospects of rehabilitation are significantly different. Hence there are reasons to think that the non parole period ought to differ between the two fact situations, all else being the same. But that is not so: to take one example, that of R v Lovel,¹⁶ the offender obtained an amount not very much less than this applicant ($94,409) but over a much longer period (nine years) with the use of false names and declarations as to circumstances and income. A nine month non parole period was imposed there.

49. There have been cases involving relatively short non parole periods for very significant deceptions perpetrated on the Commonwealth through social security fraud. They include R v Newton [2010] QCA 101 (three months) and R v Hurst ex parte Commonwealth DPP [2005] QCA 25 (six months).

50. The 60 year old offender in Hurst defrauded the Commonwealth of nearly $80,000. He was deserving of some sympathy given his background of growing up in a concentration camp under a communist regime before immigrating to Australia at age 19, 30 years before his offending conduct commenced, that background leading to a psychiatric explanation for his offending conduct. But the explanation and circumstances are nowhere near as compelling as here. This Court determined that a six month non parole period should be imposed.

51. R v Newton¹⁷ involved a fraud of over $50,000 perpetrated over a similar period to that here with false declarations as to her income. There the offender claimed a carer’s allowance she being the carer of her daughter who suffered from cystic fibrosis. The daughter eventually died. The offender was involved in caring for disabled people and she was highly regarded for her work in that demanding field. As best I can see those were the principal circumstances that justified the very limited non parole period. This Court, by majority, reduced a five month non parole period to three.

Conclusion

53. In my view the two factors that King CJ spoke of in R v Trocko¹⁸ are both relevant here – the degree of subjective or moral culpability is significantly less than in the cases to which we were referred and the prospects of rehabilitation are favourable.

54. The sentence imposed in my opinion did not give sufficient recognition to the exceptional circumstances that prevail here. In my view that recognition is given, and the need for punishment and deterrence is sufficiently met, by the following orders.

55. I would grant the application for leave to appeal and allow the appeal to the extent of ordering that the applicant be released after serving six months imprisonment and otherwise leaving the sentence imposed in place.

Footnotes

1. (2010) 198 A Crim R 430; [2010] QCA 10 at [32]-[37]. ↩

2. (1936) 55 CLR 499 at 504-505; [1936] HCA 40. ↩

3. I shall use that phrase “non parole period” throughout acknowledging that this was a recognizance release order and that there are some differences: R v Ruha, Ruha & Harris; ex parte Cth DPP (2010) 198 A Crim R 430; [2010] QCA 10 at [44]. ↩

4. ARB 79. ↩

5. ARB 78. ↩

6. ARB 74 at paragraph 15.2 – 15.3. ↩

7. See report of Ms Johnstone (Psychologist) at paragraph 5.1 -5.5 ARB 66-67. ↩

8. Sentencing remarks 6 June 2014 page 2 line 30. ↩

9. See s 20(1)(b) in Div 5 of Pt 1B of the Crimes Act 1914 (Cth). ↩

10. (2001) 207 CLR 584 at 591 per Gleeson CJ; [2001] HCA 64. And see R v Tran (2007) 172 A Crim R 436, 438 – 439 [8]; R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 at [49]. ↩

11. [1993] QCA 225 at [3]. ↩

12. (2010) 198 A Crim R 430; [2010] QCA 10 at [50]. ↩