R v Pilarinos [1999] VSCA 142

Court of Appeal (Vic)|1999-09-07|Before: BROOKING, TADGELL and CHERNOV, JJ.A.

The applicant, Valerie Maureen Pilarinos, pleaded guilty in the County Court to three counts of what is sometimes nowadays called social security fraud. She was sentenced to imprisonment, against which sentence she now seeks leave to appeal.

The period during which the offences occurred was one extending over twelve years, beginning on 1 December 1983 and ending on 10 January 1996. During that period, by reason of her misrepresentation and deceit, the applicant received some $125,000 by way of pension payments to which she was not entitled. The judge made a reparation order for some $122,000 in addition to the term of imprisonment that he imposed. The first count was that, between 1 December 1983 and 24 October 1984, the applicant imposed on the Commonwealth contrary to s.29B of the Crimes Act 1914 by an untrue representation made by omission with a view to obtaining a benefit, namely a widow's class A pension, in that she failed to advise the relevant department that she was living in a de facto relationship with Peter Pilarinos. The second count was that, between 25 October 1984 and 18 May 1989, (which latter date was the day before she married Pilarinos) she did, contrary to s.29D of the , defraud the relevant department by receiving a widow's class A pension, which then became a sole parent's pension, by failing to advise the department that she was living in a de facto relationship with Pilarinos. The third count was that, between 19 May 1989, (which was the date of her marriage to Pilarinos) and 10 January 1996 she, contrary to s.29D of the Act, defrauded the department by receiving a sole parent's pension by failing to advise the department that she was married to Pilarinos.

A short chronology might usefully be stated. In 1963 the applicant made a claim for a widow's class A pension in the name of Morgan on the footing that she was a deserted wife with one dependent child. She commenced to receive payment of the pension in June 1963. In 1974 or 1975 the applicant began a relationship with Peter Pilarinos and in 1977 a son was born to her of that relationship, and in 1980 another. In December 1983 the applicant commenced to live in concubinage with Pilarinos at East Doncaster but she did not advise the department of it. In 1985, on 1 August, the applicant changed her name by deed poll to Pilarinos and in November of that year she advised the department of the change of her name. On 19 May 1989, as I have noted, she married Peter Pilarinos but did not advise the department of the marriage. After that date she continued to live at the East Doncaster address with Pilarinos. In May and June 1995 several of the applicant's telephone calls were intercepted by the authorities and in January 1996 a search warrant was executed by the Australian Federal Police at the East Doncaster premises. Those premises, it seems to be common ground, were of a very comfortable nature, if not opulent. One witness called on the plea on behalf of the applicant appeared to concede that they might properly be described as palatial.

The arraignment in the County Court took place on 5 July of this year, when the plea of guilty was entered. The applicant then also acknowledged, I think, 14 prior convictions, of which 13 were for dishonesty, over a 30-year period from 1964 to 1994, arising out of some 13 court appearances. The maximum penalty applicable to count 1, imposing on the Commonwealth, was imprisonment for two years or a fine of $12,000 or both. The maximum penalty applicable to count 2, defrauding the Commonwealth, was, at the time count 2 was committed, imprisonment for five years or a $30,000 fine or both, and the maximum penalty applicable to count 3 at the time that offence of defrauding the Commonwealth was committed was imprisonment for 10 years or a fine of $60,000 or both. After a plea in mitigation the judge, on 15 July this year, sentenced the applicant to serve four months' imprisonment on count 1, 15 months on count 2 and 30 months on count 3. All sentences were ordered to commence on the date of their imposition and to be served concurrently. The total term, therefore, was one of imprisonment for 30 months. His Honour ordered the applicant to be released after serving eight months upon her entering into a recognisance in the sum of $1,000 on condition that she be of good behaviour for 30 months.

After the warrant was executed upon the premises where the applicant resided, she was interviewed by police. The gist of what she said in answer to the charges was that she truly believed that she was entitled to what she received because she was not being cared for by her husband. Throughout, her justification for what she did was that she was in need of the money in order to keep herself and her children.

The findings made by the judge on the passing of sentence included these. The applicant "chose the path of deception" because she believed it would be to her advantage. By that I take the judge to have meant what counsel for the respondent before us submitted that it meant, namely that she did what she did because she thought she would be better off by doing it than by obtaining a pension by legitimate application. That finding by the judge, but not necessarily the interpretation which I have attributed to it, was accepted by Miss Lieder, who appeared this morning for the applicant. Other findings by the judge were the subject of criticism upon the application before us. I mention some of them. First, the transcript of the telephone intercepts showed, as the judge said, that "on some occasions" the applicant was short of cash but nevertheless there were funds available to her to permit her gambling at the casino, which she did from time to time. Secondly, it was found by the judge that the house in which the applicant, her husband and family lived was palatial and had, as his Honour said, "the hallmarks of the well off and not the poor and needy". Thirdly, his Honour also found that, though the applicant's marriage to Peter Pilarinos was stormy and difficult, her position was not one of poverty or real need. The judge also accepted some evidence that had been put before him that the applicant's husband is a notorious criminal, with an extensive criminal record, who has never held a legitimate job and who frequents night clubs and bars. Given all that, it appears that the judge was not satisfied, at least to the extent which had been contended before him, that the applicant had been subjected by her husband to a life of penury and had been subjugated to a position little better than that of a housekeeper. The judge made those findings of fact in the absence of any material placed before him by the applicant herself, for she gave no evidence and she called no witness who was able to give evidence of any worthwhile nature of her financial position. The judge did find, however, that the house, which was well appointed and comfortable if not opulent, was owned neither by the applicant's husband nor by her but was held by a family trust of which, I think, her husband, his brother and their mother were trustees.

The grounds taken in support of this application were five in number. I can deal with grounds 2 and 3 together. They, combining them, urged that the judge erred in exercising his discretion in failing to have sufficient regard to the actual financial position of the applicant during the course of her relationship with her husband and the personal circumstances which she suffered during the course of her relationship with her husband. It was said also that the judge erred in his sentencing discretion in placing too much emphasis upon attendances by the applicant from time to time at the casino and upon the perceived lifestyle which she followed at the well-appointed house at the time of commission of the offences, and did not have sufficient regard to the countervailing influences.

Apropos of those grounds it may be said that the applicant's financial position and its relationship to the commission of her offences was a fundamental and practical issue on the plea. It seems to me that the judge, in making the findings which I have indicated, certainly had in mind - very much in mind - the actual financial position in which the applicant found herself. He made those findings, which I think were open to him, in the absence of any explanation by the applicant herself. This, I think, is another of these cases in which, had the applicant a real story to tell of hardship, penury and a real need which explained what she did vis-á-vis' the Commonwealth, she would have done herself a service to go into the witness box and tell it. There may very well be, as Miss Lieder indicated, fair reasons why she did not go into the box and submit herself to cross-examination. Nevertheless, there was precious little, I think, upon which the judge had to work in order to make the kind of findings which Miss Lieder urged he ought to have made or to which he ought to have leant. The judge had regard to these matters referred to in grounds 2 and 3 and, so far as I can see, it cannot fairly be said that he did not have sufficient regard to the matters that might have been favourable to the applicant in formulating the sentence.

In ground 4 it was said that the judge erred in failing to take into account sufficiently or at all, for the purpose of sentencing, an entitlement in the applicant to Commonwealth benefits as great as, if not greater than, those received during the time of the commission of the offences. As to that, the judge said that it might well be, as it had been contended by the applicant's counsel before him, that she would have been entitled to some kind of Commonwealth benefit during the whole or part of the time during which she offended. It was, however, too late now, as his Honour said, to ascertain the nature and extent of the probable entitlement, even though the probability of some entitlement was not the subject of dispute by the prosecution. Again, I think it cannot be said that the judge did not take into account the prospect that the applicant might, had she gone about the matter legitimately, have proved some entitlement, but the judge did find, and I think it was open to him to find, that she went about it in the way she did because she thought she would be better off by going about it in that way than she would be had she gone about it legitimately. This ground, and the argument which reflected it before the judge, apparently sought to distinguish the applicant's case from one in which a person obtains a pension by, for example, establishing a false identity or otherwise obtaining a pension without any semblance of entitlement. So much may be acknowledged, but I would point out also that the ingredients of count 1, imposing on the Commonwealth, do not include the receipt of any money at all. The mere fact of imposition is the gist of the offence. And even for counts 2 and 3 it was, of course, no answer to the charges of obtaining pension benefits by fraud that the applicant might possibly have obtained them by other and legitimate means. At best, this argument might be put in favour of some indeterminate modification of penalty. There is, however, no reason to suppose, so far as I see it, that the judge did not fix a penalty with this matter in mind.

Then, ground 5 urged that the judge erred in finding that the deterrent aspect of the sentencing process could only be carried out by imposing a term of actual imprisonment. So far as I followed the argument based upon this ground, it did not go so far as to say that an actual term of imprisonment was not justified. Rather, as I understood Miss Lieder this morning, the argument was to the effect that, in keeping with the spirit of what the judge had intended to achieve, it was appropriate that the sentence imposed by him should be reduced, not eliminated altogether. In other words, there was no contention before us that a suspended sentence should be awarded, nor, I think, was that ultimately pressed before the judge.

It seems to me that the sentence imposed was merciful having regard to the long and formidable record of dishonesty that the applicant had, and having regard also to the opinion which the judge was entitled to form, and evidently did form, as to the applicant's credibility in the course of her interview by the police. Taking all factors together with a view to assessing the culpability of the offences and the necessity to deter specifically and in general, it cannot be said that the judge erred in imposing what I would regard as the comparatively modest term of imprisonment that he did.

It will, I think, have been evident in what I have already said that I would conclude that there is also no basis for ground 1, which asserted that the sentence in its totality was manifestly excessive.

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