R v Skuta [1998] VSCA 35

Court of Appeal (Vic)|1998-08-26|Before: WINNEKE, P., PHILLIPS and KENNY, JJ.A.

The applicant had stated, when the offences were investigated, that she had committed the offences because Collins had denied her access to her own disability support pension and that her addiction to drugs and alcohol and her gambling habit had occasioned a need for money. In mitigation of the offences, it was said on the plea that: "The defendant ... was basically a prisoner in her own home as a result of Mr Collins' behaviour. She also was drinking heavily ... and she also was reliant upon gambling". Evidence to this effect was given in support by a friend of the applicant who also swore that, since her relationship with Collins had ended, the applicant had made significant improvement in her management of alcohol, drugs and gambling. Medical and psychological reports were tendered which showed that the applicant had a long history of psychological problems and, in consequence, her condition had deteriorated over time. In a report dated 5 February 1998, Mr Ian Joblin said:

"I also noted in 1982 that if this lady was placed into circumstances 'of additional stress, she may become a more severe casualty'. It appears that this has, in fact, eventuated and she appears in my opinion as a very seriously psychologically disturbed person but not at this point psychotic. She has symptoms of a serious personality disorder which need addressing forthwith. She is depressed, suicidal, disoriented and despondent with little support in the community. All these are matters which need assistance and she also needs on- going regular contact with a mental health professional."

It was said, under the second ground, that his Honour had paid insufficient attention to the personal circumstances which I have outlined and to the psychological state of the applicant to which I have referred. It was also said that he had placed insufficient weight upon her plea of guilty. Each of these matters was, however, considered during the hearing of the plea. They were specifically referred to in his Honour's sentencing remarks, although, in the case of the applicant's psychological condition, perhaps not directly. What his Honour did was refer to all the reports which had been tendered and state that he had taken note of them. In this circumstance, it seems to me that, unless it is shown that the sentences were manifestly excessive, as the third ground maintains, it cannot be said that the sentencing judge gave insufficient weight to any of the matters relied upon under the second ground.

This leads me to the third ground. In fixing the penalty, the learned sentencing judge said:

"These crimes showed some degree of cleverness on [the applicant's] part because, apart from an obvious knowledge of the system of claiming benefits, the forged letter of 18 April 1994 purports to establish that Rosalind Ann Connelly could not read or write, thereby relieving [the applicant] of the task of actually filling in the necessary forms and hence revealing [her] true handwriting."

It has been submitted, none the less, that the non-parole period fixed by his Honour demonstrated manifest excess. It has been said that the sentence is beyond the permissible range, particularly when regard is had to sentences for social security offences imposed by the courts since September 1988. That claim is supported by a document entitled "Summary Of Sentences Imposed in Social Security Matters Dealt With On Indictment From 2 September 1988". It appears that, during the last nine years, courts in this State have imposed, virtually without exception, somewhat lesser penalties when regard is had to the non-parole period awarded to this applicant. I say "virtually without exception" because there is, it seems, one not entirely dissimilar case in which a total effective sentence of three years two months was imposed with a non-parole period of two years three months. That was, however, in relation to offences over a nine-year period involving a loss to the Commonwealth of some $210,000. The present case involved offences over an almost two-and-a-half-year period involving a loss to the Commonwealth of some $18,000. It is, I think, clear that, in setting the penalty for the applicant, the learned sentencing judge had regard to the fact that she had been convicted of very similar offences four years prior to her re-offending, and that on that occasion she had indeed been treated with some leniency. This was plainly a relevant consideration. But, bearing in mind the circumstances of this offender, which were unfortunate in the extreme, the circumstances of the offence, her contrition, her full co-operation with the authorities and her guilty plea, as well as a number of other matters to which I have already referred, I do not think that the circumstances justified so significant a departure from sentencing practices clearly revealed in the summary. The interests of general and specific deterrence would have been adequately fulfilled if a lesser non-parole period had been fixed.

Accordingly, I consider the application should succeed and the applicant should be released on her recognisance in the sum of $1,000 to be of good behaviour for a period of two years and three months after serving a period of some nine months' imprisonment. In all other respects the sentence previously fixed by the learned sentencing judge should remain the same.

I agree, for the reasons given by Kenny, J.A., in the orders which she proposes.

I just want to say this. I have some sympathy for the way in which the learned judge disposed of this case having regard to the past offending of the applicant. There is a need, as his Honour said, to impose sentences which will reflect to like-minded people in the community that plundering the social security system will not be tolerated by the courts. The particular misfortune appears to have been that in the past, at least in this State, a pattern of sentencing has emerged for offences of this character in which, in general, and for offences of like character to those committed by the applicant, penalties far less than those imposed here have been imposed. Although sentencing statistics will rarely be of use to a court of appeal in determining whether a sentence in a particular application is manifestly excessive or inadequate, the Crown, in this case, provided to the judge a complete list of sentences imposed, over a period of years, upon persons who had been convicted of the same or similar offences as the applicant so that the Court would have a guide as to sentencing practices. But, when one peruses that list, which was before his Honour, it demonstrates, I think, with some clarity that the sentences imposed by the learned judge are significantly greater than those passed on other offenders both in respect of head sentences and minimum terms.

In the case of R. v. Omer (unreported, Court of Appeal, 14 February 1996), the Court remarked on the prevailing standards of sentences which have been imposed for offences of this character in this State, and indicated that:

"Parity in sentencing is not only a desirable objective in sentencing co-offenders but also where a pattern of sentencing for particular crimes can be established over a significant period. In sentencing different offenders for the same or similar conduct, such parity is also desirable."

(See: R. v. Barber (1976) 14 S.A.S.R. 388 at 389-90; Poyner v. The Queen (1986) 68 A.L.J.R. 616.)

These matters are not conclusive but are of significance in persuading me to the view that the sentence which his Honour imposed is manifestly excessive as to the minimum term imposed.

I agree that the application should be granted to the limited extent suggested by Kenny, J.A.

I would only add two comments. First, in relation to social security crime generally, I think that sometimes offending in this area is attended by particular considerations not generally present in crimes of dishonesty. Secondly, the usefulness of comparative statistics drawn from other cases is necessarily limited, as is surely demonstrated by the course of the argument before us.

I think it can be seen, independently of the statistics, that the sentence imposed in this instance was manifestly excessive, in that the circumstances personal to the offender in particular were such as to require a much lesser period of actual incarceration than two years.

Subject to that, I agree substantially with the reasons given by Kenny, J.A.

The formal order of the Court will be that the application for leave to appeal against sentence is allowed. The appeal is to be treated as having been instituted and heard instanter; it too is allowed.

We set aside the sentences imposed by the learned judge below and in lieu thereof we impose sentences as follows:

We direct that all those sentences commence as of today. That therefore makes a total effective sentence of three years' imprisonment, but we direct that after serving a period of nine months' imprisonment the applicant is to be released upon entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of two years and three months.

We also confirm the order made below that the applicant make restitution in the sum of $18,212.42 pursuant to s.21B of the Crimes Act 1914 of the Commonwealth.

We declare that a period of 141 days has already been served by the applicant pursuant to the sentence which we have imposed.

As part of the order the Court is required to declare, pursuant to s.17A(2) of the Act, that this Court has decided that no sentence other than imprisonment is appropriate having regard to the nature of the offence, the applicant's role in its commission, her antecedents and the need to deter her and others from committing offences of the same or similar character. It is ordered that those reasons be entered in the records of the Court.

In coming to the conclusion that I have just announced, the Court has been conscious of and has taken into account the provisions of s.16G of the Commonwealth Crimes Act.

Ms Skuta, the order that I have just pronounced means that this Court has confirmed the head sentences imposed upon you by the judge below, which leads to a total effective sentence, as we sometimes call it, of three years - that is sometimes known as a head sentence as well, but what we have done is to order that after you have served nine months of that sentence you are to be released upon a recognisance of $1,000, by which you will acknowledge that you will be of good behaviour for the next two years and three months. That is the difference between the time that you will actually serve in prison and the term of the head sentence. Do you follow that?

The condition of your release is that you will be of good behaviour for two years and three months after you are released. Do you understand that?

You will be credited with the time that you have already served. You have done 141 days, which is four-and-a-half months or thereabouts, so that you are only going to have to serve another four-and-a-half months before you are going to be eligible for release. Are you prepared to enter into the recognisance that I have referred to?

I have to also tell you this. If you do not, without reasonable excuse, comply with the condition to be of good behaviour, you will stand to forfeit the $1,000 recognisance. Do you understand that?

In addition to that you may be brought back before the court, and the court before which you are brought back would have a number of options, including making you serve the rest of your prison term. Do you follow that?

So you must be of good behaviour for the two years and three months.

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