R v Robertson [2008] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION: R v Robertson [2008] QCA 164

PARTIES: R v ROBERTSON, Marlene Dorothy (applicant/appellant)

FILE NO/S: CA No 29 of 2008 / DC No 479 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 20 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 26 May 2008

JUDGES: Fraser JA, Philippides and Daubney JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Allow the application for leave to appeal Allow the appeal****Vary the sentence imposed below such that the applicant be sentenced on each count to a term of imprisonment of three years, to be released after 12 months upon her entering into a recognisance of $2,500, conditioned that she keep the peace and be of good behaviour for a period of four years

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where dishonest conduct by the applicant resulted in her receiving Commonwealth benefits $121,593.61 in excess of her entitlements over a 26 year period – where the applicant pleaded guilty to the offences of false pretences with intent to defraud, defrauding the Commonwealth and dishonesty causing a loss to the Commonwealth – where the applicant was sentenced on each count to a term of imprisonment for three years to be served concurrently, with a release date on bond after 15 months – where the applicant contends that the sentencing judge failed to take adequate account of her pleas of guilty, co-operation and poor state of health – whether the sentence was manifestly excessive / Crimes Act 1914 (Cth), s 16A(2), s 19AC(1), s 19AC(4), s 19AF(1), s 19AG, s 20(1)(b) / Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, applied / Ly v R [2007] NSWCCA 28, considered / R v Acosta [1999] NSWCCA 334, cited / R v Bernier (1998) 102 A Crim R 44, considered / R v Grice [2006] QCA 326, considered / R v Hassarati [2005] QCA 102, considered / R v Hurst; ex parte Commonwealth DPP [2005] QCA 25, cited / R v McDougall & Collas [2006] 2 Qd R 87; QCA 365, cited / R v Minassian [2007] QCA 39, considered / R v To & Do, ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166; [1998] QCA 106, cited / Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL: The applicant appeared on her own behalf / M D Nicolson for the respondent

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

1. FRASER JA: The circumstances of the applicant's offending and other matters relevant to sentence are set out in the reasons of Daubney J which I have had the advantage of reading.

2. At the hearing of the application the applicant represented herself. She was unable to articulate any particular argument in support of her application, but she relied upon a written submission which was helpfully provided pro bono by counsel who had appeared for her at the sentence. One of those submissions was that the sentencing judge did not apply "the usual allowance of one-third but rather increased that to something nearer 42%." It was submitted that the "usual" factors in mitigation “entitled me to be released at the one-third mark in accordance with the ordinary approach”.

3. I would reject that reasoning process, although in the end I agree that release after serving 12 months of a three year term is the appropriate sentence when all of the relevant factors are taken into account in this particular case.

4. The applicant’s submission referred to the quite common cases in which an offender’s personal circumstances suggest an encouraging view of the prospects of rehabilitation and there are other factors in mitigation, such as a plea of guilty, remorse, and co-operation with authorities. In such cases, depending on the particular circumstances, recommendations for consideration for post-prison community based release or suspension of sentence are not uncommonly made after about one-third of the sentence has been served.¹

5. It must be borne in mind though that most of those sentences were imposed in the context of a legislative regime under which (to put it broadly) in the absence of any more favourable order, prisoners were eligible to be considered for parole at the mid-point of the term of imprisonment imposed by the court. That remains the case for many sentences of more than three years imprisonment regulated by the Penalties and Sentences Act 1992 (Qld). In respect of those sentences it has been held that "good reason" must be demonstrated before fixing as the parole eligibility date a point later than the mid-point of the term.²

6. To the extent that decisions establish ranges within which sentences are regularly imposed for similar offending, it is of course right to take them into account, but in the end 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.³ The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged "to take account of of the relevant factors and to arrive at a single result which takes due account of them all."

"[16]The learned sentencing judge said that he would have imposed an overall sentence of eight years but for the allowance of a utilitarian discount of 25%. His Honour said that the 'ratio between the non-parole period and the parole period should be one of two-thirds'. It will be seen, that this proportion would have resulted in a non-parole period of four years rather than the non-parole period of four and a half years in fact imposed. It may be that his Honour simply meant that the balance of term was to be one-third of the non-parole period, this being the result of his Honour’s calculation. The applicant contends that, generally speaking, the non-parole period in Commonwealth offences should be set within a range of approximately 60% to 66% of the head sentence, citing in support of that contention R v Bernier (1998) 102 A Crim R 44, where the Court said (at 49) –

'…The norm for non-parole periods is in the range of about 60 percent to 66 and two-thirds percent. One factor which may be material is the length of the head sentence and the 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 caution and flexibility …'

[17]It seems to me, that his Honour had the upper range specified in Bernier in mind and, with respect, either miscalculated or misapplied the ratio. It was said in R v Acosta [1999] NSWCCA 334 at [12] that a non-parole period which represented 75% of the sentence 'should be reserved for the worst class of case. It seems to me that the likely explanation is that his Honour simply miscalculated. Be that as it may, I would be disposed to correct the sentence by varying the ratio to accord with his Honour’s expressed intimation that it should comprise two-thirds of the total sentence."

13. After considering the head sentence his Honour said of the non-parole period that it "should be adjusted to conform to the learned sentencing judge's expressed intention to impose a non-parole period of two-thirds of the overall sentence."

14. It does not seem that the appropriateness of that proportion was in issue in the appeal. It also would be contrary to principle to apply those remarks to this very different case as though they replaced the statutory discretion.

15. R v Bernier concerned the importation of drugs by a courier, in which the New South Wales Court of Criminal Appeal re-sentenced the applicant to imprisonment for nine years with a non-parole period of five and a half years. I would regard the statement in the judgment of the court at p 49 that, subject to caveats concerning consideration being given to the individual facts of a particular case, "the norm for non-parole periods is in the range of about 60% to 66 and 2/3%" as one which should be understood as limited to cases concerning the nature of the offending considered in that case. Relevantly, it was also said that "(C)ircumstances 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 finally tuned assessment."

16. R v Acosta also involved importation into Australia of a prohibited drug. A head sentence of eight years was confirmed but the non-parole period imposed by the sentencing judge of six years was set aside and replaced by a non-parole period of five years. Kirby J (with whom Meagher JA and James J agreed) considered that the original non-parole period, representing 75 per cent of the head sentence, was excessive for the particular circumstances, and it was accepted in argument in that court that the appropriate range was between 60 and 65 per cent of the head sentence in that case. The Queensland decision cited for the respondent⁹ concerned offending of a similar character.

17. Each of those decisions concerns non-parole periods rather than recognizance release orders, reflecting the greater seriousness and correspondingly lengthier sentences imposed for the offences considered in them. In my opinion the facts in each of those decisions are so different from this case as to render them of no assistance in determining any aspect of the appropriate sentence here.

18. The decisions cited for the respondent which do concern offending of the nature in issue here provide no support for its proposition that the norm for non-parole periods is in the range of about 60 percent to two-thirds of the head sentence: in these broadly comparable cases the relationship between the pre-release period and the total period of imprisonment varied between less than one-third, one-third, slightly more than one-third, about 40 per cent and 50 per cent. The variation reflects the marked variation in the facts of these cases.

"The social security system is the method by which society provides an income to those of its members who, due to misfortune, are not able to provide an income for themselves. Parliament determines the conditions and the level of benefits, and no doubt, in doing so, determines not only what is necessary to meet the needs of welfare beneficiaries but also what society, through the taxpayer, can sustain in that regard. Abuse of the social security system jeopardises the system itself and therefore the welfare of all those who depend for their livelihood upon the system. It is the duty of the court to protect the social security system against this type of abuse by making orders which operate as an effective deterrence. Not only does a fraudulent abuse of the system jeopardise the system itself by placing an undue burden upon the taxpayer, and therefore, on society at large, but it also is a great injustice to all those welfare recipients who abide by the system, conduct themselves honestly and have to subsist on what is by no means a handsome income, namely the benefit prescribed by law as appropriate in the circumstances. It is a great injustice to those people if others are able with impunity to double their incomes by a fraud.

For these reasons the courts have a great responsibility to protect the integrity of the social security system by imposing punishments for deliberate and sustained fraud which are likely to operate as a deterrent to others who may be tempted. It is necessary to acknowledge and to appreciate that recipients of social security benefits are, almost without exception, subject to great financial pressures. They are obliged to maintain themselves and to provide for their needs on an income which is by no means handsome. Therefore, there must always be a temptation to enhance that income, and if it appears that that can be done without running the risk of substantial punishment, it is likely that others will be tempted to follow in the fraudulent course. It is necessary for the courts to send, and consistently send, a clear signal to all who might be so tempted, that sustained and deliberate fraud upon the system will mean going to gaol."

20. But important though general deterrence undoubtedly is in this kind of case, s 16A(2) of the Crimes Act 1914 (Cth) requires other factors also to be taken into account where they are relevant. On the particular facts of this case, many of these factors strongly point to appropriate moderation of the sentence, including the period of incarceration. Of particular relevance in that respect are (f) (the degree of the offender’s contrition: the applicant is contrite and has made such reparation as her limited resources allow), (g) (the plea of guilty, which was early), (h) (the degree of co-operation with law enforcement agencies, which was high), (j) (personal deterrence, which does not weigh heavily here), (m) (the character, age, means and physical and mental condition of the person: here the applicant’s advancing age, health problems and limited means all suggest that imprisonment for her might have a more severe effect than for many others) and (n) (the prospects of rehabilitation, which seem high).

21. Having regard to those factors and the analysis of the comparable decisions in the reasons of Daubney J, I consider that the length of the pre-release period fixed by the primary judge rendered the sentence one which was manifestly excessive. In my opinion it was outside the range of the proper sentencing discretion, albeit by only a relatively small margin.

22. In all other respects I agree with the reasons of Daubney J. I agree with the orders proposed by his Honour.

23. PHILIPPIDES J: I have had the advantage of reading the draft judgments of Daubney J and Fraser JA with which I agree. The sentence imposed by the learned sentencing judge was an excessive one when regard is had to relevant sentencing principles, the authorities referred to by way of comparatives and the circumstances pertaining to this case.

24. The authorities have long recognised the need for appropriately deterrent sentences for offences of the nature involved in this case: see R v Hurst;¹⁸ R v Wright;¹⁹R v Holdsworth.²⁰ However, an important matter in considering the gravity of the applicant’s offending was that her conduct centred on a failure to disclose changes in her circumstances, rather than what was described in R v Minassian²¹ as the greater criminality of obtaining a benefit by use of a false name. In that regard, the type and circumstances of offending reflects that in where a three year head sentence was also imposed. However, given that the fraudulent conduct extended over a much longer period and concerned a considerably greater amount than that in , a period of incarceration beyond the eight month period fixed in that case was clearly indicated.

1.False pretences with intent to defraud (committed between 12 October 1978 and 24 October 1984).

2.Defrauding the Commonwealth (committed between 25 October 1984 and 23 May 2001), and

3.Dishonesty causing a loss to the Commonwealth (committed between 24 May 2001 and 30 November 2004).

27. The applicant was sentenced on each count to a term of imprisonment for three years, to be served concurrently, and to be released after 15 months upon her entering into a recognisance of $2,500, conditioned that she keep the peace and be of good behaviour for four years.

28. The applicant now seeks leave to appeal, contending that:

(a)The sentence is manifestly excessive in requiring that she serve a minimum of 15 months’ imprisonment before release on bond;

(b)The sentencing discretion of the sentencing judge miscarried in that he failed to make any proper or adequate allowance for her pleas of guilty, co-operation, state of health and other factors in her favour; and

(c)A proper or adequate allowance for her pleas of guilty, co-operation, state of health and other factors in her favour would have been to order that she be released on bond after serving 8 to 12 months of a head sentence of three years.

29. The background to this matter can be stated briefly. The applicant is 67 years old. She was married in November 1974. At the time of her marriage, she was in receipt of the invalid pension, which was paid to her at the ‘single’ rate. After her marriage, she continued to receive the invalid pension, and then a disability support pension, and then the age pension, all at the ‘single’ rate until her marital status was detected as a consequence of an internal computer search by the Centrelink identity fraud team in 2004. As a result of that detection, the Australian Federal Police executed a search warrant at the applicant’s home on 1 December 2004. A number of documents were located in the course of that search which demonstrated that the applicant was married, and had represented herself as a married woman to everyone apart from the relevant Commonwealth department. During the period from 1974 to 2004, the applicant was sent 16 letters from the relevant Commonwealth Department in which she was advised that she was required to tell the Department of any changes in her personal circumstances, which included marriage or living in a marriage-like relationship.

30. It was uncontested that, over a period of some 26 years (from 1978 to 2004) she was paid $201,957.82 in Commonwealth benefits, when in truth her entitlement was only to receive $80,364.21. She was therefore overpaid in the total sum of $121,593.61. At the time of sentencing, she had repaid $4,416.80 by way of fortnightly withholdings from her age pension payments.

31. In the course of his sentencing remarks, the learned judge referred to the fact that the applicant suffers from a number of health problems, but not from any psychological problems. The health problems to which his Honour referred were set out in a medical certificate from the applicant’s general practitioner. This certificate stated that she suffered from a range of medical conditions, including hypothyroidism, osteoarthritis, osteopenia, rosacea, focal severe spinal canalstenosis at L4-5 with degenerative grade 1 spondylolisthesis and right hip pain. The applicant had also undergone knee replacement surgery on both knees, albeit some years prior to being sentenced.

32. Whilst the applicant declined to participate in a recorded interview with authorities, she pleaded guilty to the offences with which she was charged.

33. It was accepted by counsel who appeared for the applicant below that a head sentence of three years in a case such as the present is appropriate. Even a cursory review of comparable matters reveals that this concession was entirely appropriate, and there is no doubt that a head sentence of three years is within range. The real question is whether that part of the sentence which requires a period of incarceration of 15 months could be regarded as manifestly excessive.

34. This Court has repeatedly emphasised the seriousness with which offences of defrauding the Commonwealth are viewed. It is sufficient in that regard to repeat the following observations of McMurdo P, with whom Mackenzie and Chesterman JJ agreed, in

‘The honesty of those claiming under the welfare system is essential to its successful operation. Offences like these are hard to detect. They lead to a public loss of confidence in the integrity and worth of the social security system and create a risk of demonising the genuine and needy in our society who require such assistance from time to time. Those like Mr Hurst, who intentionally abuse the system unlawfully obtaining benefits of more than $70,000 over eight years, must expect to be sent to prison for a substantial time as a deterrent not just to them but to others who might be tempted to commit similar offences. Those principles are well established: R v Wright (1994) 74 A CrimR 152 and R v Holdsworth CA No 94 of 1993, 22 June 1993.

The authorities nevertheless recognise that in exceptional circumstances a sentencing judge retains a discretion to impose a non custodial sentence and that the need for deterrence must be balanced against the personal mitigating factors of each case: compare R v White No 411 of 1984, 3 April 1987 and the less serious case of R v Oag CA No 73 of 1993, 17 June 1993.’

35. In that case, Hurst had been convicted and sentenced to three years’ imprisonment, but with an order that he be released forthwith, on counts of defrauding the Commonwealth between 1995 and 2003. The Commonwealth Director of Public Prosecutions contended that this sentence was manifestly inadequate, and that he should have been required to serve between nine and 12 months in actual custody. Hurst engaged in a course of conduct over a period of some eight years, including changing his name by deed poll without advising the Department of Social Security, and lodging many applications for payment of benefits in which he falsely stated that he was not working or declared that he was working but understated the amount of his income. He was 60 years old at the time of being sentenced, and had defrauded about $80,000 from the Commonwealth, of which he had repaid about $20,000 by the time of the appeal. A psychologist’s report had been tendered before the sentencing judge in that case, which recorded Hurst’s ‘remarkably traumatic life’, starting with his birth in the Auschwitz concentration camp. The sentencing judge concluded that the unique circumstances of that case placed it in the exceptional category where it was not necessary for Hurst to serve a period of actual imprisonment. Notwithstanding the extraordinary circumstances of Hurst’s early life, McMurdo P said:

‘Even when those circumstances are combined with the other mitigating factors to which I have referred, they are not so compelling to outweigh the principles of general deterrence requiring a period of actual custody for such serious offending behaviour. The mitigating factors should have been reflected in an order for his early release after serving a period of actual detention, rather than an order for his release forthwith.

But for three factors which I will mention shortly, the punishment requested by the prosecutor at sentence for a period of actual imprisonment in the order of 9 to 12 months before the order for release, would have been within range.’

36. The three factors which her Honour then mentioned were that it was an appeal by the Commonwealth DPP, that Hurst had suffered additional anxiety because the appeal had been hanging over him, and that during the period when the appeal was pending he had continued to pay reparation to the Commonwealth, showing some additional remorse. The Court varied the sentence by ordering that Hurst be released after serving six months in prison.

37. In R v Hassarati²⁴, the applicant had been convicted on his own plea of guilty to five counts of defrauding the Commonwealth. He had claimed benefits in false names. He was sentenced to three and a half years’ imprisonment with non-parole periods of 15 months. To effectuate his fraud, the applicant had used false identification papers. The total amount defrauded by him was $78,439.38, which he obtained during several periods totalling 8¾ years over an 11¼ year time frame. Helman J, with whom Williams and Keane JJA agreed, after referring to the comparable cases of R v Wright²⁵ and R v Prosser²⁶, said:

‘Bearing in mind the substantially larger sum fraudulently obtained by the applicant, the length of time over which he practiced his fraud, the degree of premeditation and contrivance shown, and the non-parole period set by his Honour I conclude that the sentences imposed have not been shown to be manifestly excessive, and so I should dismiss the application.’

38. In R v Grice²⁷, the applicant had been convicted on his own plea of one count of defrauding the Commonwealth and one count of obtaining a financial advantage by deception. He was sentenced to three years’ imprisonment, to be released after serving eight months on giving a recognisance in the sum of $10,000, conditioned that he be of good behaviour for three years. The total period over which the fraud occurred was some eight years from 1996 to 2004, during which time Grice received social security payments without telling Centrelink that he was married and failing to advise Centrelink of his wife’s income from employment. During that time, he was overpaid some $68,355.05 in benefits. On several occasions over the years, the applicant had submitted forms to the department in which he either failed to reveal his marital status or misrepresented the position. Atkinson J, with whom McMurdo P and Jerrard JA agreed, observed, in terms which are not completely inapposite for the present case:

‘This was not a sophisticated fraud. The applicant did not appear to be motivated by excessive greed. It was a case where he was dishonest about his circumstances rather than a case where he deliberately set out to perpetrate a massive fraud against the Commonwealth.’

39. In the circumstances of that case, the sentence of three years, with release after serving eight months, was not regarded as excessive.

40. In R v Minassian²⁸, the applicant had been convicted and sentenced on his own plea of guilty to two counts of dishonestly obtaining a financial advantage by deception against the Commonwealth. For some two and a half years from December 2002 he had falsely claimed on Centrelink forms that he was not married when in fact he was. This resulted in him being paid benefits at a higher rate. Moreover, from August 2004, he had been in employment, but did not disclose that to Centrelink. The second count related to him having applied for a ‘Newstart’ allowance in a false name in March 2004. He completed 11 review forms using that false name, misrepresenting his marital status and his employment status. In total, Minassian defrauded the Commonwealth of some $20,000. 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. The applicant, who was 32 years old at the date of sentence, had some criminal history, including for offences of dishonesty. His plea of guilty was described as having been entered at ‘the last possible minute’. Holmes JA, with whom the Chief Justice and Jerrard JA agreed, said that:

‘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.’

41. The sentence imposed was regarded as representing a ‘sound exercise of the sentencing discretion’.

42. Of the cases I have just mentioned, R v Grice is probably the closest to the present case in terms of the circumstance of the applicant and the nature of the offences committed, although it is important to recall that the offending in the present case extended over a very long time (some 26 years) and consequently a substantially larger amount of money was defrauded from the Commonwealth. The longer duration of the offending, and the commensurately larger amount involved, would have warranted an appropriately stern approach to the fixing of the period of incarceration within the admittedly appropriate head sentence of three years. Cases to which we were referred, including Hassarati²⁹, in which periods of incarceration of 15 months were imposed, involved the perpetration of quite sophisticated and well-planned frauds, including by the use of false identities. Having regard to the circumstances of this applicant, including her age and health issues, the absence of any criminal record, and the nature of the offending, I consider that the fixing of a release date after 15 months’ imprisonment was excessive, and that it would be appropriate, and in line with the ranges indicated in the comparable cases to which I have referred, for the applicant to be released on recognisance after 12 months’ imprisonment.

43. For completeness, I should say that I have had the advantage of reading the reasons of Fraser JA, and respectfully agree with everything there said by His Honour.

44. Accordingly, I would grant leave to appeal against the sentence, allow the appeal, and vary the sentence imposed at first instance by varying the time after which the applicant can be released on a $2,500 bond for four years to 12 months from the date of sentence on 14 January 2008.

(2007) 174 A Crim R 78; [2007] QCA 273 at [22], [27] and [33]-[34]; compare the category of offences attracting sentences of less than three years where there is no legislative provision for parole eligibility and a parole release order takes effect at any time within the term as ordered by the court (see R v Kitson [2008] QCA 86 at [15], [16]).

Footnotes

1. R v Hoad [2005] QCA 92 at [31], per Jerrard JA; R v Norton [2007] QCA 320 at p8 per Douglas J; see also R v McDougall & Collas [2006] QCA 365 at [20] per Jerrard, Keane and Holmes JJA. ↩

2. R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365 at [14], [21]; R v Assurson ↩

3. Bugmy v The Queen (1990) 169 CLR 525 at 538; [1990] HCA 18. ↩

4. Wong v The Queen (2001) 207 CLR 584 at 74; [2001] HCA 64, approved in Markarian v The Queen (2005) 228 CLR 357 at [37]; [2005] HCA 25. ↩

5. R v To & Do, ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166 at 170; [1998] QCA 106. ↩

6. R v Bernier (1998) 102 A Crim R 44 at 49; R v Acosta [1999] NSWCCA 334 at [13]; Ly v R [2007] NSWCCA 28 at [16]-[17]; R v Ononogbo, unreported, Wilson J, Supreme Court of Queensland, 17/9/2007. ↩

7. R v Tran (2007) 172 A Crim R 436; [2007] QCA 221 at [8], [23], [31] – [33]. ↩

8. Ly v R [2007] NSWCCA 28. ↩

9. R v Ononogbo, Supreme Court of Queensland, Wilson J, 17/9/2007. ↩

10. R v Minassian [2007] QCA 39 (an offender's unsuccessful application for leave to appeal against a sentence of three years imprisonment to be released after nine months); [2006] QCA 326 (an offender’s unsuccessful application for leave to appeal against a sentence of three years imprisonment to be released after eight months); WACCA 99 of 1998 (three and a half years imprisonment with 12 months before eligibility for parole); [1998] VSCA 35 (three years imprisonment to be released after nine months).