REGINA v HUNT

Tuesday 3 December 2002 REGINA v Craig Kendall HUNT Judgment 1 SPIGELMAN CJ: This is a Crown appeal against the alleged inadequacy of sentence pursuant to s5D of the Criminal Appeal Act 1912. 2 On 16 May 2002 the Respondent pleaded guilty before a magistrate at the Local Court at Wollongong to two offences under s29B of the Crimes Act 1914 (Cth). In each case he was convicted of the offence of imposing upon the Commonwealth by an untrue representation made to obtain a benefit, namely a Newstart Allowance. 3 He received the first of the allowances in the name of Gary James Ross for the period between 11 June 1997 and 23 November 2000. He received the second of the allowances in the name of Craig McCormack between 22 February 2000 and 16 November 2000. At all times he was in receipt of a Disability Support Pension in his own name. With respect to this first offence he received $23,669.60 to which he was not entitled. In the second case, the amount was $7,864.46. 4 The Respondent adhered to his plea of guilty in the District Court and on 5 September 2002 his Honour Judge Phelan sentenced the Respondent to imprisonment for twelve months for each offence cumulative, to be released at the end of a period of eighteen months on entering into a recognisance release order for a period of six months. His Honour directed that the sentence be carried out by way of periodic detention. He also made a reparation order in the amount sought by the Commonwealth. 5 The maximum penalty for the s29B offence is imprisonment for two years and/or a fine, which is now $13,200. The Crown submits that the penalty imposed by his Honour was manifestly inadequate by reason of his failure to impose a full-time custodial sentence. 6 The Crown refers to the well-established proposition that there is a strong element of leniency built into a sentence for periodic detention. It also refers to a well-established body of sentencing principle indicating that general deterrence is a matter entitled to considerable weight with respect to offences of this character. 7 The issue before this Court was whether or not his Honour failed to act in accordance with these well-established principles by giving inappropriate weight to the subjective circumstances of this case. The findings of primary fact are not in issue. 8 With respect to the claim made in the name of Gary James Ross, the Respondent used both a false name and a false date of birth. He drew a line through the space on the form which asked for details of other names by which he had been known. He ticked the box marked "No" in answer to the question "Have you ever claimed a Social Security payment before?". He signed a declaration in the name of Gary James Ross stating that the information he had given was complete and correct. 9 During the period of over three years in which this offence was committed he lodged fortnightly applications for payment in the false name. He never advised the authorities that he was also in receipt of a Disability Support Pension in the name of Craig Kendall Hunt. 10 With respect to the offence committed in the name of Craig McCormack he used both a false name and gave a false date of birth. Again he lodged fortnightly application forms or payment. He failed to advise the authorities that he was in receipt of a Disability Support Pension in the name of Craig Kendall Hunt and a Newstart Allowance in the name of Gary James Ross. 11 In each case he had lodged false birth certificates with the Agency. 12 His Honour set out in his remarks on sentence the offender's substantial criminal record which commenced in January 1979 and extended over a considerable period, during which time he was convicted of a substantial number of drug and stealing offences. He has been sentenced to various periods of imprisonment. 13 In March 1993 he was dealt with in the Sydney District Court for similar charges to those presently before the Court. He faced a charge under s29B of the Crimes Act 1914 (Cth). He was convicted and ordered to perform 250 hours community service and to pay reparation in the amount of $22,806.15. In August 1994 he was dealt with in the District Court for failing to comply with the condition of community service. The order was revoked and he was ordered to perform 70 hours. 14 In May 1995 he was again before the Local Court. He was dealt with for larceny and fined and for an attempt to gain advantage by deception. He was given a recognisance to be of good behaviour for two years. 15 In June 1996 he was again before the Local Court and ordered to enter into a bond to be of good behaviour on a charge of assault and given a further recognisance in respect of two other assaults. 16 In October 1996 at the Local Court he was fined for stealing and in September 1999 at the Wollongong Local Court he was fined for possessing a prohibited drug. 17 In March 2000 at Wollongong Local Court he was dealt with for two further charges of possessing a prohibited drug and fined $100 each. His Honour commented: "Those fines rather suggest that the offences were relatively trivial." 18 For a period of over twenty years the Respondent has been preying on the community to which he has made no known contributions. During that period he has been given numerous chances by sentencing magistrates and judges, all of which he has abused. For him to receive another chance may be a triumph of hope over experience. The issue is whether or not it was open to his Honour to give him that chance. 19 In his late teenage years the Respondent had formed a de facto relationship based on mutual drug abuse. There were three children from that relationship now aged twenty-one, seventeen and fourteen. The Respondent has sole custody of the youngest, a fourteen year old girl. The Respondent has basically not worked since he was eighteen years of age until quite recently. 20 The Respondent gave evidence while he was in gaol he became acquainted with drug suppliers and became indebted to them. He claimed that they threatened himself and his daughter unless he made payments to them and this was the primary use to which he put the monies he obtained by the offences. His mother and sister told the Court that they were aware of these threats. 21 Judge Phelan, whilst expressing scepticism about the Respondent's evidence, accepted his version of events, primarily because of the supporting evidence of his mother and sister. His Honour accepted that the criminal conducted involved was "motivated by fear of reprisal against a younger daughter in particular and himself". Accordingly his Honour took this into account in assessing the level of criminality involved in the offences. His Honour noted the well-established significance of general deterrence in sentencing for these offences, was somewhat attenuated in this particular case in a context where the Respondent was in fear of his life. 22 Three factors appear to have been of particular significance for the sentencing judge. First, his Honour noted that the Respondent had successfully participated in a methadone programme over the course of which he reduced his methadone intake to zero. Medical reports suggested that screening confirmed that he was not on illicit drugs during that programme. 23 Secondly, the Respondent had obtained and kept, for a period of eighteen months, a full-time job for the first time in his adult life. Third, he had considerable support from his family which his Honour expressed in the following way: "It is of particular significance in this case that the offender's long suffering family continue to support him. I formed the impression that they are upright and law abiding people." 24 His Honour accepted the conclusions of a pre-sentence report which stated: "It appears Mr Hunt has made a concerted effort over the past two years to turn his life around. He has been successful in completing the methadone programme as well as gaining meaningful full-time employment. His father …"

The report does not mention his mother but intended to by the use of the plural. "… (and mother) have also commented on the positive changes he has made in his life. It appears that he has reached a maturity that has taken many years to develop. Mr Hunt impresses as being forthright and honest and has been cooperative through the Pre-Sentence Report stage." 25 It was on this basis that the officers assessed the Respondent as suitable for a periodic detention order. 26 His Honour concluded: "Whilst the offender made no admissions he entered pleas of guilty at the earliest opportunity, albeit in circumstances where it is conceded that there was a strong Crown case. His criminal record does not assist and of serious implication is the prior similar offence in 1993 when he was leniently dealt with. I am satisfied that he is remorseful as his turnabout in getting off methadone and getting a job show. For a man of the offender's age, now 43, whose life has been haunted by the evil of drugs since a teenager, it is unusual to see such a remarkable turnaround. To send him to full-time prison in the unusual circumstances here might, in the long term, be disastrous. And … bearing in mind the care and scepticism that the Court should approach cases where this assertion of turning or reaching the crossroads is made …" 27 His Honour proceeded to refer to each of the elements of s16A of the Crimes Act 1914 (Cth). 28 There was evidence before his Honour of a change in the Respondent's lifestyle, both in terms of overcoming long term drug addiction and holding down for a period of eighteen months a responsible job as a property manager. His Honour indicated a degree of scepticism that the Respondent had permanently changed his life in view of his long history and his failure to take earlier opportunities to change his lifestyle, including opportunities that were made available to him at a time when he had young children. 29 Such scepticism is often justified and the Court must avoid what Dunford J has described as "wishful thinking" in R v Govinden (1999) 106 A Crim R 314. In a judgment with which James J and Smart AJ agreed, his Honour said at [35]: "Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is 'at the cross-roads', 'has seen in the error of his ways', 'is at the turning point in his life', or 'has excellent prospects of rehabilitation'. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the Court should be astute to recognise them." 30 What Dunford J referred to as "wishful thinking", I have referred to as the "triumph of hope over experience". The idea is the same. I agree with his Honour. There are cases where persons have indicated a determination to change their previous life, which included a life of crime. 31 In this case the evidence of holding down a responsible job for 18 months, together with the evidence of success in drug rehabilitation, the significance of support from a close family, and his own responsibility for a young teenage daughter, are such as to indicate that this is a case in which a conclusion of this character is warranted. 32 It was open to his Honour to find that there had been a substantial change in recent years. It was also open to his Honour to find that the Respondent was being threatened and, while the corroboration from his mother and sister was vague as to the time period, I note that the Crown did not challenge this finding of fact by his Honour. 33 Accordingly, in my opinion it was open to his Honour to proceed to afford the Respondent the degree of leniency that a sentence of periodic detention contains. Weekend detention will allow the Respondent to retain his employment. However, if he were to offend again he must accept that no such leniency will be available to him on a future occasion. He has spurned the hand of clemency on numerous occasions. He has no reasonable expectation of it being proffered again. 34 The appeal should be dismissed. 35 DUNFORD J: I agree. 36 BUDDIN J: I also agree. **********

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