R v TOWNSEND

COUNSEL: C Ng (Appl) C B Craigie SC (Resp)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appl) Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/548

McCLELLAN CJ at CL HIDDEN J PRICE J

MONDAY 14 MAY 2007 R v TOWNSEND, Doreen Judgment 1 McCLELLAN CJ at CL: The respondent to this appeal pleaded guilty on the arraignment before Moore ADCJ in the District Court in relation to seven offences presented on an indictment. The offences were: "1. Between about 10 July 1975 and about 14 July 1983, at Strathfield New South Wales, did impose upon the Commonwealth, namely the Department of Social Security, a department of the Commonwealth, by an untrue representation, made by omission, with a view to obtain money, namely Widows Pension Class B in the name Doreen Florence Smith, in that she omitted to disclose to that department that she was a member of a couple, legally married to John Henry Townsend. Particulars (a) on 11 February 1972 the defendant married John Henry Townsend (b) subsequent to that marriage Doreen Florence Smith completed and lodged forms with the Department of Social Security in which she stated that she was widowed (c) as a result of the marriage, Doreen Florence Smith was not entitled to Widows Pension Class B. 2. Between about 28 July 1983 and about 24 October 1984, at Strathfield New South Wales, did impose upon the Commonwealth, namely the Department of Social Security, a department of the Commonwealth, by an untrue representation, made by omission, with a view to obtain money, namely Age Pension in the name Doreen Florence Smith, in that she omitted to disclose to that department that she was a member of a couple, legally married to John Henry Townsend. Particulars (a) On 11 February 1972 the defendant married John Henry Townsend (b) Subsequent to that marriage Doreen Florence Smith omitted to inform the Department of Social Security that she was married (c) Doreen Florence Smith also omitted to inform the Department of Social Security that between 1 September 1983 and at least 24 October 1084 her husband, John Henry Townsend, was employed by and in receipt of income from EW Watts & Sons Pty Ltd. 3. Between about 25 October 1984 and about 26 June 1997, at Strathfield New South Wales, did defraud the Commonwealth, namely the Department of Social Security, a department of the Commonwealth, in that she did dishonestly obtain payment of Age Pension in the name Doreen Florence Smith, in that she omitted to disclose to that department that she was a member of a couple legally married to John Henry Townsend. Particulars (a) On 11 February 1972 the defendant married John Henry Townsend (b) Between 1 September 1983 and 7 May 1990 John Henry Townsend was employed by and in receipt of income from EW Watts & Sons Pty Ltd (c) Between 3 April 1990 and 18 October 1990 John Henry Townsend was employed by and in receipt of income from Ralph Symonds Australia Limited (d) Between 1 July 1991 and 17 October 1991 John Henry Townsend was employed by and in receipt of income from Versatec Industries Pty Ltd (e) Between 11 November 1991 and 9 April 1992 John Henry Townsend was employed by and in receipt of income from Butcher Holdings Pty Ltd (f) Between 21 May 1992 and 22 July 1992 John Henry Townsend was employed by and in receipt of income from Renbay Systems Pty Ltd (g) Between 18 July 1992 and 9 December 1993 John Henry Townsend was employed by and in receipt of income from Furniture Connections (Hong Kong) Pty Ltd (h) Between 1 July 1993 and at least 26 June 1997 John Henry Townsend was employed by and in receipt of income from DDI Joinery Pty Ltd 4. Between about 10 July 1997 and about 22 May 2001, at Strathfield New South Wales, did defraud the Commonwealth Services Delivery Agency, a public authority under the Commonwealth, in that she did dishonestly obtain payment of Age Pension in the name Doreen Florence Smith, in that she omitted to disclose to that agency that she was a member of a couple legally married to John Henry Townsend. Particulars (a) On 11 February 1972 the defendant married John Henry Townsend (b) Between at least 10 July 1997 and 1 October 1998 John Henry Townsend was employed by and in receipt of income from DDI Joinery Pty Ltd (c) Between 1 October 1998 and 30 June 2000 John Henry Townsend was employed by and in receipt of income from Caringbah Commercial Interiors 5. Between about 5 June 2001 and about 14 August 2001, at Strathfield New South Wales, did dishonestly cause a loss to another person, namely the Commonwealth entity the Commonwealth Services Delivery Agency, knowing that such a loss would occur, in that she did obtain payment of Age Pension in the name Doreen Florence Smith without disclosing to that entity that she was a member of a couple legally married to John Henry Townsend on 11 February 1972. 6. Between about 28 August 2001 and about 19 April 2005, at Nowra New South Wales, did dishonestly cause a loss to another person, namely the Commonwealth entity the Commonwealth Services Delivery Agency, knowing that such a loss would occur, in that she did obtain payment of Age Pension in the name Doreen Florence Smith without disclosing to that entity that she was also in receipt of Age Pension in the name Doreen Florence Townsend 7. Between about 14 May 2002 and about 26 April 2005, at Nowra New South Wales, did dishonestly cause a loss to another person, namely the Commonwealth entity the Commonwealth Services Delivery Agency, knowing that such a loss would occur, in that she did obtain payment of Age Pension in the name Doreen Florence Townsend without disclosing to that entity that she was in receipt of a pension from ComSuper in the name Doreen Anderson." 2 The sentencing hearing occupied more than the usual period. There was a concern to ensure that his Honour was informed of the circumstances of the offences and also the personal circumstances of the respondent and her family. 3 His Honour determined, having regard to all of those matters, that the respondent should be sentenced to concurrent terms of imprisonment:

1. Section 29B offences (counts one and two) 6 months imprisonment);

2. Section 29D (counts three and four) 3 years imprisonment;

3. Section 135, the 15 offences, (counts 5, 6 and 7) one and a half years imprisonment. 4 His Honour suspended the sentences and directed that the respondent be released forthwith upon entering into a recognisance, ordered that he be of good behaviour for three years with self surety of $1000, pursuant to s 21B of the Crimes Act (Cth) 1914. The sentencing judge also made a reparation order in the terms sought by the Commonwealth. 5 The Crown appealed his Honour's decision in relation to the various sentences. The fundamental submission was that his Honour erred in suspending the sentences. It was submitted that for crimes of this nature a term of full-time imprisonment is the only appropriate sentence in almost every case. 6 The sentencing judge was significantly influenced in the sentences which he imposed by the fact that, although the respondent had committed, and repeated her crimes, over a period of 30 years, and had in that time taken in excess of $90,000 from the Commonwealth, nevertheless her age, which is now almost 84 years, and serious health issues, were such that His Honour did not believe it would be just to impose a term of full-time custody. 7 For the hearing of this appeal the Crown has provided the Court with detailed and helpful submissions. The respondent has also provided the Court with assistance through a written document. It is unnecessary for me to rehearse what each of the parties have said. The respondent concedes that in relation to offences of this nature the almost inevitable sentence should be one of full-time custody. That must be right and there are a number of decisions of this Court to that effect where a person sets out to defraud the Commonwealth by falsely swearing in relation to declarations which found a social security payment. This Court views the criminality involved as serious, justifying a term of imprisonment in almost every case. Indeed, if the respondent had been sentenced at first instance it may be that other judges would have formed the view that a term of full-time custody was appropriate and almost inevitable notwithstanding her personal circumstances. 8 However, this is a Crown appeal. The principles by which this Court approaches Crown appeals have often been repeated. Acknowledging that the criminality in this case may have required a full-time term of custody, I am of the opinion that, having regard to the personal circumstances of the respondent, and the principles referred to as double jeopardy, it would not be just for this Court now to revisit the sentence and provide for a period of incarceration. In so concluding, I should not be misunderstood as concluding that the sentences which were imposed were free of error. However the personal circumstances are so significant that in my view the only course is to dismiss the Crown appeal. 9 HIDDEN J: I agree. 10 PRICE J: I agree.

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