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[2023] QCA 131
General information, not legal advice.
Court of Appeal (Qld)
2023-06-20
Bowskill CJ and Morrison JA and Henry J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Waters; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 131
PARTIES: R / v / WATERS, Erin Kate / (respondent) / EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS / (appellant)
FILE NO/S: CA No 195 of 2022 / DC No 405 of 2022
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT: District Court at Cairns – Date of Sentence: 17 August 2022 (Morzone KC DCJ)
DELIVERED ON: 20 June 2023
DELIVERED AT: Brisbane
HEARING DATE: 15 May 2023; further submissions received 22 May 2023 and 29 May 2023
JUDGES: Bowskill CJ and Morrison JA and Henry J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was a receptionist in a medical practice and raised and submitted 355 false Medicare claims over a 13 month period – where the respondent, by deception, dishonestly obtained $178,548.70 from those 355 false Medicare claims – where the respondent was sentenced to two years and nine months’ imprisonment and was released forthwith on a $1,000 two-year recognisance and two years probation – where the respondent not being required to serve any jail time appeared to derive from the content of a psychological report – where the Commonwealth Director of Public Prosecutions appeals the sentence – whether the sentence was manifestly inadequate – whether the sentencing judge erred in finding that issues of general deterrence and specific deterrence could be moderated by the mental health of the respondent – whether the circumstances of the long delay between sentence and appeal hearing and what has transpired in the interim make it unjust to re-sentence to actual custody / Crimes Act 1914 (Cth), s 16A, s 17A(1) / Criminal Code (Qld), s 669A / Director of Public Prosecutions Act 1983 (Cth), s 9(7) / Judiciary Act 1903 (Cth), s 68(2) / Brown v The Queen (2020) 62 VR 491; [2020] VSCA 212, followed / Director of Public Prosecutions (Cth) v Golic [2014] VSCA 355, distinguished / Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145, cited / Director of Public Prosecutions (Vic) v O'Neill (2015) 47 VR 395; [2015] VSCA 325, cited / CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, cited / El Rakhawy v The Queen (2011) 214 A Crim R 124; [2011] WASCA 209, cited / Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered / Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, considered / Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, cited / R v Adams; Ex parte Attorney-General (Qld) [2006] QCA 312, considered / R v Buckman [2016] QCA 176, considered / R v Hayes [2010] QCA 96, distinguished / R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489, followed / R v Holdsworth; Ex parte Director of Public Prosecutions (Cth) [1993] QCA 242, considered / R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, followed / R v Hurst; Ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25, considered / R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242, considered / R v Palmer; Ex parte Attorney General (Qld) [2019] QCA 133, considered / R v Squire [2008] QCA 19, considered / R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, cited / R v Verdins (2007) 16 VR 269; [2007] VSCA 102, followed / Rhode v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50, cited
COUNSEL: S J Farnden KC for the appellant / B R Bilic for the respondent
SOLICITORS: Director of Public Prosecutions (Commonwealth) for the appellant / Mansia Bovey & Company Lawyers for the respondent
BOWSKILL CJ: I agree with Henry J.
MORRISON JA: I have had the advantage of reading the reasons of Henry J. I agree with those reasons and the order his Honour proposes.
HENRY J: The respondent, a receptionist in a medical practice, raised and submitted 355 false Medicare claims, thereby causing $178,548.70 of taxpayers’ money to be paid to her. She pleaded guilty to the Commonwealth offence of dishonestly obtaining a financial advantage by deception. She was sentenced to two years and nine months’ imprisonment, and, despite the magnitude of her offence, was released forthwith on a $1,000 two-year recognisance and two years probation.
The justification for her not being required to serve any jail time appeared to derive from the content of the psychological report of Dr Chris Richardson. The Commonwealth Director of Public Prosecutions contends that content did not warrant such a merciful sentence and appeals the sentence.
Such an appeal invokes the operation of s 669A Criminal Code (Qld) via s 9(7) Director of Public Prosecutions Act 1983 (Cth) read with s 68(2) Judiciary Act 1903 (Cth).1 Section 669A(1) provides that on such an appeal against sentence, “the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper”.
The two grounds of appeal are:
the sentence is manifestly inadequate;
the learned sentencing judge erred in finding that issues of general deterrence and specific deterrence could be moderated by the mental health of the respondent.
The complaint of inadequacy is not directed at the head sentence but the failure to require the service of some material proportion of it in actual custody.
What were the relevant sentencing principles and comparable sentence ranges?
Section 17A(1) Crimes Act 1914 (Cth) provides that a sentence of imprisonment shall not be imposed unless the court is satisfied no other sentence is appropriate in all the circumstances of the case. Section 16A(1) requires the sentence imposed to be “of a severity appropriate in all the circumstances of the offence”. Section 16A(2) lists a variety of matters which the court must take into account, relevantly including the nature and circumstances of the offence, the loss resulting, the degree of contrition shown by taking action to make reparation, the timing of the plea of guilty, the personal and general deterrent effect of any sentence, the need to ensure adequate punishment, the character, antecedents, age, means and physical or mental condition of the defendant and the defendant’s prospects of rehabilitation.
For offending of this kind, general deterrence is an especially important sentencing principle, as was explained in this way by Pincus JA and Thomas J in R v Holdsworth; Ex parte Director of Public Prosecutions (Cth):2
“It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught. Any notion that the Commonwealth and its departments are fair game for this type of activity is to be resisted. … Activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud governmental agencies will find an unacceptable risk”.
That case was far less serious than the present. Holdsworth pleaded guilty to claiming a total of $5,685.45 from Medicare using many false receipts. The majority upheld a prosecution appeal, ordering that Holdsworth, who had been spared actual custody at first instance, serve three months of the sentence of 12 months imprisonment before recognisance release.
“[I]t is it is well established that offences involving serious dishonesty committed over a period of time and involving substantial sums of money will ordinarily result in a term of immediate imprisonment. This is because in such cases the weight to be given to general deterrence is increased and that given to personal factors is reduced…”
Given the importance of general deterrence, it is scarcely surprising that the comparable sentences referred to by the parties, and now discussed, mostly resulted in sentences requiring a substantial component of actual imprisonment.
In Norvenska v Director of Public Prosecutions (Cth)4 the defendant medical practitioner pleaded guilty on the morning of his second trial to a fraud involving the alteration of Medicare’s assignment of benefit forms to claim higher benefits than he was entitled to, totalling $133,563.35. He was sentenced to two years’ imprisonment to be released after six months upon entering a $1,000 recognisance to be of good behaviour for two and a half years. The apparent leniency of that sentence was not scrutinised in Norvenska’s appeal which was concerned solely with his failed attempt below to withdraw his plea of guilty.
In R v Squire,5 a defendant in her early 30’s with a relevant criminal history pleaded guilty to having obtained a financial advantage totalling $45,685.95 and attempting to obtain a further $5,985 over a four month period by claiming Medicare rebates on false receipts of medical specialist services. She was sentenced to two and a half years imprisonment with release after nine months on a $2,500 good behaviour recognisance. A reparation order was made but none of the money had been or was likely to be repaid. This Court refused leave to appeal. McMurdo P, with whom Muir JA and Mackenzie J agreed, observed:
“The sentence imposed in Holdsworth, a much less serious example of Medicare fraud than the present, shows that Ms Squire’s early release … after nine months gave compassionate and generous recognition to her guilty plea, her personal circumstances, family responsibilities and the effect of her imprisonment on her dependent children”.6
In the above mentioned case of El Rakhawy v The Queen7 the defendant medical practitioner, over the course of 16 months, submitted claims to Medicare for services rendered to patients which had not been provided, gaining $121,599.90. He was 52 years old with no relevant previous convictions, pleaded guilty and was committed for sentence and repaid the taken amount in full. His sentence was varied on appeal to a total of three years’ imprisonment with release on recognisance after 20 months upon entering into a $5,000 recognisance to be of good behaviour for 16 months.
In R v Buckman8 the defendant was a medical practice receptionist whose financial advantage obtained by deception over a period of about 16 months amounted to $189,000. She was 31 to 33 years of age at the time of the offending and had a criminal history for similar offending. She offended in the context of drug use and a significant gambling addiction. While a reparation order was made on sentence, none of the money had been repaid and there was no current prospect that it would be. This Court declined to interfere with the sentence of three years’ imprisonment with release after 14 months upon entering into a $1,000 recognisance condition to be of good behaviour for four years. In declining to interfere, this Court noted a more severe sentence could have been imposed having regard to the guidance supplied by El Rakhawy v The Queen. It was noted that while Buckman was not a medical practitioner like El Rakhawy, her offending nonetheless involved a breach of trust in taking advantage of her access as employee to the Medicare numbers of patients and was overall more serious than the offending in El Rakhawy, given the amount defrauded was larger, the absence of restitution and her relevant criminal history.
The only case cited by the parties in which a defendant escaped actual imprisonment was Director of Public Prosecutions (Cth) v Golic.9 Over a 14-month period Golic obtained $199,875.35 in rebates via false claims with Medicare and a further $42,723.55 by false claims on her private health insurer. While the money had not been paid back, reparation and compensation orders were made and there was some prospect that, on the defendant’s completion of her tertiary education, her future employment would give her the opportunity to make reparation. She made full admissions and pleaded guilty. For her offending against Medicare she received two years’ imprisonment with immediate release on a $500 recognisance condition to be of good behaviour for two years. For her offending against her health insurer she was sentenced to a two-year community corrections order and ordered to perform 80 hours’ unpaid community service.
What circumstances of this case informed the appropriate sentence (excluding Dr Richardson’s report)?
During the approximately 13 months of the offending period, between 3 September 2019 and 14 October 2020, the respondent was a receptionist in a bulk-billing medical practice. She had been trained in how to lodge and claim Medicare rebates through EFTPOS. Her offending involved the processing of 355 claims for 354 provisions of service, of which 351 were for services which did not occur at all. Three were for services which took place but in respect of which it was a patient, not the respondent, who was entitled to receive the rebate. Her likely dominant methodology was to use the practice’s EFTPOS machine to claim and receive payments of rebates paid on fictional patient payments to her bank accounts.
The respondent’s employment was terminated on 26 October 2020 with the fact of her offending emerging subsequently. She did not attend two appointments made for her to be interviewed by the authorities in March 2021 and was eventually charged in November 2021. She was committed for sentence.
The total financial advantage obtained by the respondent was $178,548.70. The eventual sentence included an order that the respondent make reparation to the Commonwealth by payment of that amount. By the time of sentence, the respondent had arranged, with the financial support of her stepfather, for that amount of money to have been paid into her solicitor’s trust account for repayment on to the Commonwealth. Administrative arrangements for its receipt by the Commonwealth bureaucracy had not quite been perfected by the time of sentence but it was common ground below and in this Court that the re-payment of the money was a mitigating circumstance on sentence.
There were other circumstances favourable to the respondent. She was a still youthful 24 to 25 years of age during her offending. She had no criminal history. She gave an early indication of her guilty plea and was committed for sentence.
As against those considerations, the amount of money taken was very substantial. Further, this was no mere short-lasting error of judgment by the respondent. It was calculated, prolonged, repetitive offending. Nor was this a case of a gambling addict, taking increasingly large amounts of money intending to try and win back and repay the taken total, or of an offender motivated to provide monetary aid to a needy other. The respondent offended to obtain and use money for her personal benefit. Moreover, this was not only an offence against the public revenue and thus an offence against society generally. It also involved a betrayal of the trust placed in her by her employer as an employee with access to the Medicare numbers of the patients of the practice and to its digital system of rebate payment.
Much was sought to be made of the respondent’s personal circumstances on sentence. She has three older brothers, one of whom has an intellectual impairment, a problem which she perceives impacted her upbringing because of its demands within the family. Her parents separated when she was an infant and she was largely raised by her mother and stepfather.
To what extent did the content of Dr Richardson’s report provide further mitigation?
(1)reports which opine, with clearly identified and credible foundation, the existence of an impairment of mental functioning of such a degree as to have mitigated the moral culpability with which the defendant offended and or to inform the appropriate form of sentence for a defendant now suffering such impairment; and
(2)reports which, with limited foundation, give vague or heavily qualified opinions about the defendant’s psychological state and its relevance to the moral culpability of the offender and or the form of appropriate sentence.
There is obvious variation in the potential utility on sentence of reports in the first category as compared to the second category. Of course, some reports may occasionally have partial qualities of each category, however the very variable utility of psychologists’ reports demonstrates the importance of not automatically assuming from the mere exhibiting of one that it must be deserving of material weight.
Dr Richardson’s report was a report in the second category. That is no criticism. It doubtless reflects the limitations of the relevant available foundational information. However, the defence solicitor’s submission below, that no time in actual custody should be served, and the learned sentencing judge’s acceptance of that submission, each seemed to give Dr Richardson’s report the weight of a report in the first category.
Dr Richardson interviewed and assessed Ms Waters on 4 April 2022 and obtained further information from her during telephone conversations on 29 and 31 July 2022, the later date being the date of her report. After giving some description of the respondent’s familial relations, Dr Richardson opined:
“12. Ms Waters experiences significant cognitive and perceptual distortions around the support she gets from her family. She considers she is not well supported by her family [her perceptions were challenged but shifted little during our sessions].
It should be noted that it is her family who have provided significant assistance prior to, during and after her offending behaviours. Of particular note is that she has lived with one of her brothers and his wife on and off over recent years, her stepfather has been instrumental in obtaining the requisite funds for her to pay back the money she obtained by deception and she is currently residing with her mother and her stepfather.
Ms Waters’ self-focus, resentment at not being heard or listened to and her inability to recognise the significant support she has around her is consistent with difficulties with a personality disorder instrumental in her state at the time of offending.” (emphasis added)
The opinion emphasised above in para 14 of Dr Richardson’s report, was only of a consistency with difficulties and did not explain why a personality disorder may have been in existence or how it may have been “instrumental in her state” when offending. Further, the ensuing content of the report did not ever grapple with the common-sense prospect that the personal attitudes noted in the above-quoted passage may simply be reflective of a still maturing, self-centred personality – personality traits which may well have been instrumental in, though not mitigatory of, the respondent’s prolonged offending.
In dealing with the respondent’s education and employment, Dr Richardson noted the respondent had reported that she worked as a receptionist at the medical practice with which the present case is concerned and left because her boss was terrible and bullying her badly. That is incorrect. In fact, she left her employment because it was terminated.
In discussing the respondent’s relationships, Dr Richardson’s report alluded to the respondent’s domestically violent relationship. The report noted:
“28. … She reports that this relationship ended in mid, 2019 around the time the DVO was sought. She reports she experiences significant distress around the abuse in her relationship and felt extremely unsafe after it ended because he threatened to have her killed and she “had no one to protect [her]”.
Ms Waters reports she “did what [she] did [in terms of the current offence] so that [she] could get out of that situation because [she] had no one to help and [she] had to get safe”.
Ms Waters reports she “tried to get out of [her] rental, but there was nothing available and because [she] was afraid to leave the house, [she] would get Uber Eats and Woolworths delivery, and [she] bought a home gym so she could exercise at home”.
Ms Waters reports she “was fearful and in survival mode and yes what [she] did was wrong but the alternative was potentially being killed [she had been threatened that this would happen] and [she] felt [she] had lost control of [her] life”.” (emphasis added)
“45. Ms Waters reports she “believes [she] didn’t have any other choice, [her] fight/flight response was to protect [herself] and [she] needed the money to do that”. When asked about the length of time involved in her offending behaviours Ms Waters reported “it turned into a bit of an addiction and something that [she] could finally control in [her] life, [she] couldn’t control [her] thoughts, [her] feelings or emotions but [she] could control an aspect of [her] life, [she] was finally able to get into a place of safety and [she guesses she] started to take advantage of this by buying things that made [her] feel better. What started as buying clothes and changing [her] hair colour for safety turned into an addiction to have what [she] wanted more than what [she] needed”.” (emphasis added)
“54. Ms Waters reports that she took the funds to make herself safe after the ending of an abusive relationship which involved domestic violence and threats to have her killed. She reports however that after making herself safe she believes she became addicted to being able to buy ‘things’ that she liked rather than needed.” (emphasis added)
Thus, it is clear on the respondent’s own reporting to Dr Richardson that her offending was initially motivated by her security concerns but that motivation was superseded by her desire to spend money on herself.
“38. Ms Waters believes she has Post Traumatic Stress Disorder [PTSD] which she attributes to the incident and subsequent behaviour/threats by her ex-partner. This has not been formally diagnosed by any medical practitioner. She has however been formally diagnosed with Major Depressive Disorder and Anxiety by her GP in her recent Mental Health Care Plan. It is also noted that in 2020 her psychologist suggested that Ms Waters’ presentation is consistent with a diagnosis of Panic Disorder.
Of note however is that Ms Waters reports a significant history of self-harm [cutting and banging her head], particularly when she is not feeling as though others in her life are paying attention to her, she is being ignored or life is not going as she would like/expect.
After being challenged in our interviews Ms Waters now recognises that to some extent her behaviours are somewhat manipulative in an attempt to obtain an expected outcome. She reports that notwithstanding significant engagement in therapy she has not been able to obtain any relief from the distress she experiences around such matters. She does report however that she did not tell the psychologist or medical practitioners the extent of her self-harming behaviours or her resentment around what she considers to be childhood neglect.
It is highly recommended that Ms Waters be formally and fully assessed by a psychiatrist.”
That the respondent “believes she has” Post Traumatic Stress Disorder is of no weight. Her GP’s recent diagnosis, for which no source evidence was exhibited, may merely reflect the depression and anxiety many persons experience when facing imprisonment. In any event, there was no indication her mental state would make imprisonment more burdensome for her than for an ordinary person. Further, there is no suggestion the GP’s diagnosis relates back to the offending era. The highpoint is that her presentation in 2020 was consistent with a diagnosis of panic disorder.
The reference in the above quoted passage to self-harm was not returned to in any material way later in the report, save for it being listed as a prospective feature of the distress associated with a borderline personality disorder (see paragraph [56] quoted below).
Dr Richardson opined in her conclusion:
“50. Ms Waters’ state meets the DSM-V diagnostic criteria for Borderline Personality Disorder.
Ms Waters has also been previously diagnosed with Panic Disorder, Anxiety Disorder and Major Depressive Disorder. It is possible she experiences some difficulties with elements of PTSD however this has not been formally assessed, diagnosed or treated. …
Given Ms Waters’ presentation and psychological profile it is likely that she experiences significant distress associated with Borderline Personality Disorder which involves but is not limited to such features as unstable relationships, unclear or shifting self-image, impulsive, self-destructive behaviours, self-harm, extreme emotional swings and chronic feelings of emptiness.
Ms Waters has never been formally diagnosed with this disorder and has tried to minimise the extent to which others in her life [including the medical and mental health practitioners] might be aware of her distress. As such she is untreated and any medical intervention which did not recognise her personality disorder as a factor will, and it appears from her report, has been unsuccessful.
It is imperative that Ms Waters be formally assessed and diagnosed. Given the complexity of her state a psychiatric assessment is recommended. It should be noted that appropriate treatment that Borderline Personality Disorder generally involves significant and regular engagement in a therapeutic process with an appropriately qualified team of therapists. …”
It is important to appreciate that the speculative observations made in the above-quoted passage fall well short of purporting to be an authoritative diagnosis. They gain no apparent credence merely by their tenuously founded references to a past panic disorder of which the evidentiary highpoint was not a diagnosis but observations of consistency with such a diagnosis, to depression and anxiety apparently only diagnosed by a GP in the era preceding sentence or to the respondent’s lay view that she may have Post Traumatic Stress Disorder.
The above-quoted references to meeting diagnostic criteria for borderline personality disorder and the respondent’s “presentation and psychological profile” making it likely she “experiences significant distress associated with borderline personality disorder” is seemingly premised upon the respondent’s responses to a personality assessment inventory. That gave rise to a “computerised interpretive clinical report” from which Dr Richardson drew the observations she made in appendix A to her report.
That appendix, under the heading Validity of Responses, contained an assessment of the degree to which the respondent’s response styles may have affected or distorted the report of symptomology in the inventory. It noted:
“Certain of these indicators fall outside of the normal range, suggesting that Ms Waters may not have answered in a completely forthright manner.” (emphasis added)
“Given certain response tendencies previously noted, it is possible that the clinical scales may overrepresent or exaggerate the actual degree of psychopathology.” (emphasis added)
The apparent relevance of these qualifications to the reliability of the assessment was not canvassed in the content of the substantive report.
Further, the observations in paragraph [57] quoted above seemingly assume that the practitioners who have dealt with the respondent in a clinical context did not diagnose the respondent with borderline personality disorder because she minimised her level of actual distress prospectively associated with such a disorder. How the assumed negative (they did not notice she had symptoms of borderline personality disorder) proves the assumed positive (she must have had symptoms of borderline personality disorder) is not apparent. The more obvious assumption is that the practitioners who, unlike Dr Richardson, had repeat clinical contact with the respondent, were well placed to appraise the respondent’s actual distress and detect conditions of a potential borderline personality disorder, if such conditions had been present. It is not apparent that they detected such conditions.
Even more material than those considerations is the fact that nowhere in Dr Richardson’s report does there appear any identification or explanation of a mitigating causal connection between the respondent’s psychological state and her persistence in continuing her offending for such a prolonged period on such a grand scale. The only apparent potential causal explanation is the respondent’s fear and perceived financial need to better secure and safeguard her safety. This may have coincided with a panic disorder. Even if it did, that does not explain or mitigate the prolonged nature and scale of offending which, on the respondent’s own account, graduated from being motivated by her perceived need for safety to being motivated by her desire to obtain money for her personal benefit. The only information before the Court which put a purportedly psychological cause to that aspect of the behaviour was the respondent’s own assertion that she became “addicted” to wanting more than she needed. That was merely a sanitised way of admitting she continued the offending because of greed, not need.
This analysis exposes that the content of Dr Richardson’s report in substance only reinforced the inference that the respondent had embarked upon her offending when suffering symptoms consistent with a panic disorder, driven by high stress and emotional vulnerability flowing from concerns at the prospect of further violence by her former partner. It confirmed that on the respondent’s own account her initially needy motivation for offending changed to buying things she liked. It tended to confirm rather than alter the equation that the reduced moral culpability with which the respondent embarked upon her offending dissipated and was substantially countered by the fact the offending continued for over a year, amassing a very substantial total benefit to the use of the respondent.
Despite its various references to possible disorders and the desirability of psychiatric assessment and diagnosis, Dr Richardson’s report identified no additional foundation for reduced moral culpability. Nor did it indicate that the respondent had a mental impairment which would make prison more burdensome for her than for ordinary person confronted with imprisonment.
Did the sentencing judge err?
The learned sentencing judge’s approach to sentence appears to have given great weight to Dr Richardson’s references to various possible disorders, despite the underlying lack of substance in their relevance to the imposition of an appropriate sentence.
The potential relevance on sentence of temporary or permanent impaired mental functioning was explained in the Victorian case of R v Verdins,11 which reformulated principles derived from R v Tsiaras.12 In summary, the Verdins principles are that temporary or permanent impaired mental functioning may be relevant in that:
the condition may reduce the moral culpability of the offending, making denunciation a less relevant sentencing objective;
the nature and severity of the symptoms of the condition exhibited by the offender at the time of offending and or the date of sentence may moderate or eliminate general deterrence and or specific deterrence as sentencing conditions;
the condition may have a bearing on the kind of sentence and associated conditions to be imposed, including because a given sentence may, in consequence of the condition, weigh more heavily on the offender than on a person in normal health or because the condition may mean imprisonment has a significant adverse effect upon the offender’s mental health.13
These are not controversial propositions. They were articulated as relating to cases involving “impaired mental functioning” in an apparent acknowledgement that it is the effect of the impairment, not the diagnostic label it attracts, which is relevant. The distinction is an important safeguard against the risk that diagnostic classifications divert attention from the relevant substance, or lack thereof, behind them.
The appellant’s outline of submissions placed some emphasis on a passage in R v Hayes14 where Chesterman J, with whom Ann Lyons J agreed, observed a personality disorder does not have the effect of reducing the moral blameworthiness of offending and thus constituting a mitigating factor on sentence in the way a mental illness may. Those observations were made in the context of a case in which there was no link between the personality disorder and the offending. They ought not be interpreted as inevitably precluding the possibility of personality disorders having the effect of constituting mitigating circumstances. Doubtless alive to that possibility, Holmes JA, as her Honour then was, expressly observed in Hayes:
“Although I agree that in this case the applicant’s personality disorder was not such as to amount to a mitigating factor, I prefer not to express any more general conclusion on the topic of whether personality disorders can constitute mitigating circumstances.”15
Further, Holmes JA in R v Adams; Ex parte Attorney-General (Qld)16 observed that a personality disorder, which is not an uncommon feature of those who commit criminal offences, reflects a pattern of functioning, not an illness, and while it may be relevant in mitigation it does not bring the offender within the class of a case discussed in R v Tsiaras.17 This was another way of acknowledging, as Verdins subsequently did, that there may be impairment short of mental illness which nonetheless may have a mitigatory effect on sentence.
As much is uncontroversial in Queensland sentencing. There will have been many Queensland decisions in which this Court has not been critical of the mitigatory effects of personality disorders being taken into account on sentence.18 The relevant consideration though is not the psychological label. It is whether the offender’s mental state as a matter of fact involved or involves such an impairment of mental functioning as to materially reduce moral culpability or the claims of deterrence or the appropriate range of prospective sentencing options.
That view is consistent with the conclusions reached in the decision of a Full Bench of the Victorian Court of Appeal in Brown v The Queen.19 In declining to follow its earlier decision in DPP v O'Neill,20 a decision which placed reliance upon the above-quoted observations of Chesterman JA in R v Hayes, the Full Bench in Brown v The Queen emphasised the importance of focusing on the information in the individual case. It observed:
“Evidence based decision making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future …
Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity. But, plainly enough, it is not for this Court to suggest any threshold level of severity which must be reached before those principles would become applicable. …
Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.”21
All of this leads back to the point already made about the limitations in the present case of the psychological information, particularly in the psychologist’s report. At best it identified a modest degree of impaired mental functioning, involving symptoms consistent with a panic disorder, driven by fear and concern to safeguard safety, which to some degree mitigated the moral culpability attending the initial stages of the offending. It did not contain a well-founded expert opinion of impaired mental functioning which reduced the moral culpability of the prolonged nature and scale of the offending or the claims of deterrence or which narrowed the available appropriate sentencing options. Perhaps that was obscured by the veneer of the report’s various psychological descriptors referred to by the learned sentencing judge in passing sentence.
His Honour observed:
“I acknowledge that in the past, and that which is effectively undisturbed, you have been diagnosed with panic disorder, major depressive disorder and anxiety, and you may well have traits of post-traumatic stress disorder, although that is not a diagnosis. … There will be a significant overlap between all of those past diagnoses and, through a very detailed psychological assessment and report, another label is thrown at you of borderline personality disorder. And, of course, that manifests in the way that you know life was then and continues to some degree now …”
Those observations appear to be premised in particular upon the passage of Dr Richardson’s report which these reasons have already explained involved tenuously founded speculation about diagnoses.
“I do accept that you were in a state of complex and, I think, downward spiralling mental illness. …
I think, in the circumstances, there is, by virtue of the manifestation of your mental state, a connection to what you did in committing these offences. It evolved over time. There was, in the early stages, your retreat, as it were, from abusive relationships and how to manage your own safety. That brought about a need to be at home and expenditure in relation to that. It brought about a need to be financially stable, including paying off your car.
But that evolved further. You saw and came to be comforted by that liberty, and then took advantage of circumstances where that continued to be fed, such that your impulsivity could continue with expenditure so as to feel better, but far exceeded what was needed, obviously so, and to that extent you entered into the realm of greed and self-indulgence. That, of course, must be looked at through the prism of your diagnoses and it is in that sense that general deterrence, I think, should be moderated.
And because of the nature and severity of your impaired functioning and symptoms at the time, as complex as they are, it seems to me you knew what you were doing was wrong, but your judgment was significantly affected by your impaired mental state and you were on a course of conduct that you found yourself unable to stop.
I think specific deterrence can also be moderated. You have, in the past, had those difficulties as expressed by the medical report, but I do accept that you have made significant efforts and you have made a commitment to comply with appropriate and recommended treatment. You have started that. There is much work to be done, but I am persuaded that you are on the track to see it through.” (emphasis added)
His Honour’s reasoning that the offending was persisted with in a state of downward spiralling mental illness and was mitigated when looked at through the prism of the respondent’s diagnoses was not open on the evidence or logically open as moderating the claims of general deterrence. It was at odds with the material before the Court to regard what the learned sentencing judge properly characterised as the offending having “entered into the realm of greed and self-indulgence” as being the product of an “impaired mental state”. Such evidence as there was of the causal influence of the respondent’s mental state upon her offending at best explained her erroneous judgment in embarking upon the offending in the context of feeling that her personal safety was at threat. That somewhat mitigated her moral culpability in embarking upon the offending. But it did not explain, let alone mitigate, the prolonged nature of the offending or the sheer scale of the amount of money taken. That void was significant. It logically precluded the learned sentencing judge from reasoning as he did to conclude general deterrence was moderated. The complaint of error as regards general deterrence should be accepted.
The foundation for the conclusion that specific deterrence could be moderated was that the respondent had previously sought out counselling and was willing to further do so. That is too tenuous a basis to infer moderation of the need for specific deterrence for an offender who abused the trust of her employer and offended in such a prolonged and significant way, and thus also constitutes error.
His Honour went on to conclude:
“I do accept that a sentence of imprisonment, of actual custody, will weigh more heavily on you than someone of normal health. I think there would be a risk of exposure to the risk of aggravation of your condition in a prison environment. You have already demonstrated such destructive behaviour of self, including carrying out self-harm and contemplating taking your life. … [W]hile you may be broken and on the mend, you ought understand the value to yourself, and I think a prison environment will present such a risk that it ought be considered serious.”
The conclusion that actual custody would weigh more heavily upon the respondent than an ordinary prisoner had not been contended for by the respondent’s own representative. It was not supported by the exhibited material before his Honour. The most likely explanation for that error, which is not the subject of a specific ground but may also in part explain the sentence’s inadequacy, was that excessive weight was placed upon the speculative information in Dr Richardson’s report about the respondent’s present psychology.
It is important to acknowledge that s 15 Penalties and Sentences Act 1992 (Qld) authorises a sentencing court to receive such information on sentence “that it considers appropriate to enable it to impose the proper sentence”. While this allows regard to information of a kind that is not strictly proved via the evidentiary procedures of a trial, it does not alter the need for there to be information before the Court which is capable of logically supporting the inferences sought to be drawn from it. Minds may differ as to the availability and force of competing inferences and, in that event, considerable weight needs to be attached to the uniquely placed position of a sentencing judge, who may be alive to nuances and subtleties not necessarily apparent from the written record of proceedings. But as these reasons have explained, the inferences drawn to surmount the void in information and justify the unusually generous conclusion reached here, were unsustainable.
The appellant has made good the specific complaint of erroneous moderation of general and specific deterrence.
Further, in light of the earlier referred to sentencing cases, it is apparent the sentence imposed was manifestly inadequate, even allowing for this case’s mitigating features. Those features included the absence of previous convictions, the background of domestic violence related fear and psychological frailty attending the commencement of the offending and the full repayment of the money taken. They were sufficient to justify moderation of actual custody to a period lower than half of the head sentence. It is unnecessary to be more proscriptive of how much lower than to observe that deterrence and the need to ensure adequate punishment still called for a material period of actual custody to be served. The circumstances were not so exceptional as to require no time in actual custody.
Do the circumstances of the long delay between sentence and appeal hearing and what has transpired in the interim make it unjust to re-sentence to actual custody?
The appellant’s success in demonstrating error does not mean the appeal should be allowed. Such an appeal must surmount both of the hurdles for such an appellant identified by Heydon JA in R v Hernando,22 namely, to demonstrate appellable error and “negate any reason why the residual discretion of the Court of … Appeal not to interfere should be exercised”. Hence, as was explained in R v Hopper; Ex parte Attorney-General (Qld),23 even where error is demonstrated this Court retains a residual discretion not to return a person granted liberty to custody. Further, in considering a prospective re-sentence the Court is obliged to consider the respondent’s contemporary circumstances relevant to penalty and not merely those which prevailed at first instance.24 That difference may warrant a different sentence response than was apt below.
Circumstances informing the appropriateness of re-sentencing were identified by the plurality in Green v The Queen25 as including that the inadequacy of the first instance sentence may be so great as to risk undermining the criminal justice system if not corrected. A counter-veiling view may be that the inadequacy is not so affronting that the interests of justice will be jeopardised by merely identifying the sentence’s deficiency without subjecting the respondent to re-sentence.26
Were this Court to decide to re-sentence the respondent to impose a period of actual custody it would inevitably opt for a lower period than was apt at first instance. That is because of the impact of the long delay, the additional mitigating considerations arising from it and the positive progress of the respondent’s life while serving her existing sentence in the community.
Such an approach was taken, for example, in R v Hurst; Ex parte Commonwealth Director of Public Prosecutions,27 a social security fraud case. A three year head sentence was imposed on Hurst. What should have been fixed as an actual custody component of nine to twelve months at first instance was fixed on re-sentence at six months. However, the delay and events in the interim in Hurst were less significant than the present case.
“Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”31 (emphasis added)
The delay in the hearing of the appeal was significant. The sentence occurred on 17 August 2022. The appeal was filed on 13 September 2022. The appeal was not heard until about nine months after the sentence, on 15 May 2023. Further written submissions were ordered at the hearing, with the last of those being received from the appellant on 29 May 2023.
The respondent is not to blame for this long delay. The Court file shows that a lamentable delay in provision of the Court file as between registries was not resolved until the appellant enquired after the record book on 18 January 2023, over four months after the filing of the appeal. There is no indication though of an urgent hearing date being pressed for. The Court of course controls its list, but where an appellant has good reason to seek an expedited listing, as is invariably the case with appeals against sentence inadequacy, it is the role of that party to advocate for it. A similar point was made of the State Attorney-General’s role in R v Palmer; Ex parte Attorney General (Qld).32
The result is that this Court should take into account that the respondent has borne the punishing burden of prolonged uncertainty as to her fate and that she has been serving her existing sentence, which included a recognisance order and probation, in the meantime. It should also take into account any rehabilitative progress she has achieved in that long period.
There is no evidence to suggest the respondent has not been of good behaviour pursuant to the recognisance under which she was released. Further, the report of the respondent’s probation officer confirms the respondent “has been compliant and engaged well with probation officers”. It also notes she has been engaging with her general practitioner and psychologist on a frequent basis.
The respondent’s affidavit confirms that information, including that she has attended counselling sessions under her GP’s referral and continued her medication. An exhibited letter from mental health nurse Janet Hayes confirms the respondent was referred by her GP and attended three counselling sessions on 24 September 2022, 22 October 2022 and 19 November 2022. An exhibited letter from her GP of 22 April 2023 to the same mental health provider confirms she was on anti-depressant medication and sought to refer her for further counselling.
The appellant correctly submits these steps to manage the respondent’s mental health are not particularly significant. It also submits they are not of the kind urged in the report of Dr Richardson, though that appears academic because, in re-sentencing, this Court would not attach the weight to that report which was erroneously given to it below. In any event, it is apparent from the respondent’s probation officer’s report that the probation officer does not regard the imposition of additional psychological intervention as necessary.
“Where error … is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as “the residual discretion”. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established.” (emphasis added)
Orders
Appeal dismissed.
See for example Peel v The Queen (1971) 125 CLR 447, Rhode v Director of Public Prosecutions (1986) 161 CLR 119. ↩
[1993] QCA 242, page 7. ↩
(2011) 214 A Crim R 124, page 131 [36]. ↩
[2007] NSWCCA 158. ↩
[2008] QCA 19 (not cited by the parties on appeal but referred to in a sentence schedule advanced at first instance). ↩
[2008] QCA 19, [16]. ↩
(2011) 214 A Crim R 124. ↩
[2016] QCA 176. ↩
[2014] VSCA 355. ↩
[2014] VSCA 355, [39]. ↩
(2007) 16 VR 269. ↩
[1996] 1 VR 398. ↩
(2007) 16 VR 269, 276. ↩
[2010] QCA 96 [28]. ↩
R
Waters; Ex parte Director of Public Prosecutions
(2020) 62 VR 491
(2011) 34 VR 1
(2015) 47 VR 395
(2015) 256 CLR 346
(2011) 244 CLR 462
(1971) 125 CLR 447
(2007) 16 VR 269
(1986) 161 CLR 119
(2013) 249 CLR 600
In dismissing the appeal of the Commonwealth Director of Public Prosecutions in Golic, the Victorian Court of Appeal agreed the case was so exceptional as to justify the merciful sentence, despite the long period of offending and the amount of money acquired.10 The psychiatric evidence revealed Golic had a history of depression and anxiety, for which she had long been on medication, from when she was diagnosed at 23 with an inoperable brain tumour and told she might not survive. She became addicted to gambling and went bankrupt before having surgery to remove the tumour. Then, in the lead up to the offending, her clinical depression, for which she was seeing a psychiatrist, continued and her pathological gambling, strongly associated with depression, intensified. The Victorian Court of Appeal considered the learned sentencing judge had been entitled to infer there was a link between Golic’s depression, her development of the gambling addiction and the commission of the offences. It concluded the sentencing judge did not err in giving culpability moderating weight to Golic’s mental illness or in concluding it would make prison more burdensome for her.
In summary the cases cited suggest, in the absence of exceptional circumstances, that for offending on the scale committed by the applicant a well moderated sentence on a guilty plea would ordinarily be at least three years imprisonment with some material proportion of it to be served in actual custody. The circumstances of the present case, to which these reasons now turn, did not place it into the exceptional realm of a case like Golic.
She completed Year 12 with only modest academic results. After a couple of service industry jobs, she became a receptionist in a medical practice run by the family of her first partner with whom she lived for 18 months. She subsequently worked in an integrated healthcare practice and then in aged care, before moving to Cairns to be close to where her family had moved. She in due course gained employment as a receptionist in the medical practice in which she offended.
After the respondent had moved back to Cairns, she entered her second significant long-term relationship. That relationship ended after three months in May 2019, with her partner, an amphetamine user with a history of violent behaviour, being violent and threatening towards her. A domestic violence protection order was issued in early June 2019 but she remained in fear by virtue of her ex-partner’s previous violence and threats. In May 2020, during the offending period, she began a new relationship with her third partner, and moved in with him in September 2020, a short time before the end of the offending period.
Her general practitioner referred her to a clinical psychologist to whom she presented with end sleep insomnia, deliberate self-harm ideations in the absence of planning or attention, daily panic attacks, withdrawal and feeling easily startled. It appears she had first been referred in March 2020, about halfway during the offending period. Her initial session with the clinical psychologist was said to have been on 6 August 2020 and she attended a total of seven psychological therapy sessions which spanned during and beyond the balance of the offending period.
The exhibited letters from her then clinical psychologist opined her presentation was consistent with a diagnosis of panic disorder, the respondent having presented for treatment following a relationship breakdown in which her former partner had been threatening. The clinical psychologist’s report of 17 March 2021 noted the respondent’s former partner had been sentenced, which had contributed to an improvement in her symptoms and a reduction in her panic attacks. The same report noted there had been some recent workplace difficulties “with marked distress compounded by a background of complex childhood themes”. It is not suggested the respondent had disclosed the nature of her offending in those counselling sessions.
She later attended five sessions of therapy with a different psychologist between July and August 2022, during which she was described as “participating in therapeutic intervention to address the issues that led to her fraudulent behaviour”. The sparsely worded letter reciting that history did not identify what issues had “led” to her fraudulent behaviour. It is a curious absence in important information from a source apparently well placed to give it.
Setting aside the report prepared for the sentence by a different psychologist, Dr Chris Richardson, it was a reasonable inference that the respondent had embarked upon her offending when suffering symptoms consistent with a panic disorder, driven by high stress and emotional vulnerability flowing from concerns at the prospect of further violence by her former partner. The likely judgment impairing impact of such features tended to mitigate the apparently calculated way in which the offending was commenced. However, the mitigating effect of those features dissipated the longer the offending continued. That the offending continued for over a year, amassing such a substantial total benefit to the use of the respondent, substantially countered the mitigating weight to be given to the judgment impairing circumstances in which the respondent offended.
The upshot of the prospective sentencing impact of the mitigating circumstances, excluding the content of Dr Richardson’s report, is that it was within the range of a sound exercise of the sentencing discretion to impose a somewhat more lenient than ordinary total period of imprisonment and set the period to be served in actual custody at less than 50 per cent of that total. However, that period still needed to be of sufficiently material substance as not to defeat the still significant importance of general deterrence and the need to ensure adequate punishment of such prolonged, substantial offending. Did the content of Dr Richardson’s report so materially change that equation that it was within the sound exercise of the sentencing discretion to have required no period at all to be served in actual custody?
The nine month delay here was even more significant than the seven month delay in R v Kane; Ex parte Attorney-General (Qld),28 where the delay and the prospect of disrupting Kane’s reintegration into the community, were decisive in this Court’s decision not to re-sentence him to additional actual imprisonment. Admittedly, Kane had at least served some actual imprisonment. However, a like outcome occurred in R v Palmer; Ex parte Attorney General (Qld),29 where a sentence of imprisonment had been wholly suspended at first instance. Despite concluding a period of actual custody should have been imposed, this Court declined to re-sentence Palmer because of the extent of the seven and a half month delay and his likely continued journey of rehabilitation in the interim.30
Those examples bring focus to the real issue here, namely whether the extent of the nine month delay and the interim circumstances combine to make it unjust to re-sentence at all. The plurality in Green observed of such circumstances:
More significantly, after the sentence, the respondent obtained and has continued in employment as a dental nurse, embarking upon a 12 month training contract to achieve a Certificate III in Dental Assisting. That promising development – employment and obtaining a qualification – is likely to promote rehabilitation but will be displaced if the respondent is now imprisoned.
The reparation order was complied with. The respondent has given her stepfather, the funder of the reparation, power of attorney over her financial affairs. All of her income goes to an account managed by her stepfather, with re-payments being progressively made to him and her receiving a nominal spending allowance. She characterises that arrangement as “pivotal in ensuring my step-father gets repaid the money he paid on my behalf and acts as protection against any future reckless spending”.
Another development is that the respondent has been able to move out of her parents’ house into her own rented unit, commencing a one year tenancy term on 25 November 2022. It may reasonably be inferred imprisonment will result in the breach of that tenancy.
The respondent’s counsel emphasises all these progressions of the respondent’s life since sentence, in addition of course to the mitigating features already apparent at the time of sentence. None of the progressions are individually revelatory but in combination they do trend moderately against interference.
Had the timing of this appeal been advanced quickly, with a view to avoiding the very equation now presenting itself, the argument in favour of re-sentencing would have been stronger. The dilemma is that such a long time was permitted to transpire before the appeal was argued.
That circumstance, of itself inimical to the proper administration of justice,33 would materially elevate the degree of systemic injustice visited upon the individual by re-sentencing to actual imprisonment. It makes the decision whether to re-sentence much more finely balanced than otherwise would have been the case. In the result, that balance is tipped by applying the High Court’s above quoted warning that the guidance afforded to sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual. This appeal’s just goal of providing guidance to sentencing courts, particularly towards consistency in sentencing, has been served by this Court’s finding the sentence below was manifestly inadequate (a finding which will prevent the case’s future use as a comparable sentence). However, achieving the additional goal of adequately punishing the individual has been so compromised by the dual systemic failure to achieve it below and attempt it promptly here that it would be unjust to re-sentence the respondent.
Hence, despite the appeal grounds having succeeded, this Court should not exercise the discretion reposed in it by s 669A to vary the existing sentence. Guidance as to the appropriate order in such a circumstance can be derived from the plurality’s observation in CMB v Attorney-General (NSW),34 that:
[2010] QCA 96 [1]. ↩
[2006] QCA 312 [17]. ↩
[1996] 1 VR 398. ↩
Eg R v Hester [2008] QCA 277; R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; R v Cheng [2016] QCA 193; R v Adam [2022] 10 QR 343; R v BDY [2023] QCA 40. ↩
(2020) 62 VR 491. ↩
(2015) 47 VR 395. ↩
(2020) 62 VR 491 [61], [68], [69]. ↩
(2002) 136 A Crim R 451, 458; cited with approval in CMB v Attorney-General (NSW) (2015) 256 CLR 346, 366 [56]. ↩
[2015] 2 Qd R 56. ↩
R v Dowel [2013] QCA 8, [25]. ↩
(2011) 244 CLR 462, 479. ↩
Eg R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56, 86 [101]. ↩
[2005] QCA 25. ↩
[2022] QCA 242. ↩
[2019] QCA 133. ↩
Contra R v Brincat [2020] QCA 248 where there was no significant delay, only modest rehabilitative gains and this Court re-sentenced the respondent to actual imprisonment. ↩
(2011) 244 CLR 462, 479-480; principles confirmed in Munda v Western Australia (2013) 249 CLR 600, 624. ↩
[2019] QCA 133, [45]. ↩
Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1, 22. ↩
(2015) 256 CLR 346, 365 - 366 [54] (citations omitted). ↩