REGINA v KILLEN

M. Allnutt (Crown) COUNSEL: A. Webb (respondent)

Commonwealth DPP (applicant) SOLICITORS: Legal Aid Commission (respondent)

IN THE COURT OF CRIMINAL APPEAL 2004/2323

JAMES J HIDDEN J BELL J

9 February 2005 REGINA v Joanne Maree KILLEN Judgment 1 JAMES J: I have read Hidden J's judgment in draft and have concluded that, for the reasons given by his Honour, the Crown appeal against sentence should be dismissed. I have reached that conclusion, only after considerable hesitation. The conclusion depends very much on the peculiar combination of circumstances in this case and the decision of this Court should not be regarded as lending any support to a general proposition that a person who received social security benefits to which he or she was not entitled can avoid an immediately effective custodial sentence because of a belief that the benefits were needed in order to pay for alcohol or drugs to which the person was addicted. 2 HIDDEN J: This is an appeal by the Commonwealth Director of Public Prosecutions against a sentence passed upon the respondent, Joanne Maree Killen, in the District Court after she pleaded guilty to a charge of defrauding the Commonwealth, an offence under s29D of the Crimes Act 1914 (C'th) which carries a maximum sentence of ten years imprisonment. She was sentenced to imprisonment for twenty-one months from the date on which sentence was passed, 19 August 2004, but the sentencing judge directed, pursuant to s21(1)(b) of the Act, that she be released immediately upon recognisance. The recognisance was conditioned that she be of good behaviour for the period of the sentence and accept the supervision of the Probation and Parole Service. Pursuant to s21B of the Act, his Honour ordered her to pay reparation to the Commonwealth in the sum of $95,852.09.

Facts 3 On 15 September 1987 the respondent gave birth to a daughter, and from October of that year she began to receive a sole parent pension and related benefits from the Department of Social Security, now Centrelink. Put shortly, the offence was that she continued to receive those benefits for a period of about nine years between 1992 and 2001 when the child was no longer with her, but was in the care of her parents. Not only did she fail to disclose to the department that the child was no longer in her care, she represented that she was in documents she was required to fill out for the purpose of periodic review of her entitlements. 4 Over the nine year period she was overpaid $102,321.86. By the time she appeared for sentence she had repaid $6,469.77, leaving the amount which I have referred to above which was ordered to be paid by way of reparation. She declined to be interviewed when she was arrested, but she had made relevant admissions to officers of Centrelink when the matter was first investigated.

Subjective Case 5 The respondent was thirty-nine years old at the time of sentence and is now forty. She has previous convictions, which the sentencing judge did not consider to be of any real significance for the purpose of the case at hand. In this appeal no issue was taken with that assessment. His Honour had before him a pre-sentence report, several medical reports and psychiatric reports, together with a social work report. He observed of the applicant that her life "has certainly been far from easy". 6 It is unnecessary to recite in detail the background set out in those reports. For a period of about six months in her early teens she was sexually abused by her father. Although she ultimately re-established a satisfactory relationship with him, this appears to have been the source of her decline. Behavioural difficulties at school led to her expulsion just before her fifteenth birthday. Thereafter, she worked in several unskilled jobs for short periods but her employment was compromised by her escalating substance abuse. She used drugs but her major problem was her excessive use of alcohol from the age of fifteen, which developed into a severe and enduring alcohol dependence. 7 From the same age she embarked upon a rather sordid, promiscuous lifestyle, and had several relationships with men which were unsatisfactory and sometimes abusive. She had her daughter with her for several years before she asked her parents to take her because, as a result of her drinking, she could not adequately care for her. 8 Her alcoholism has had serious effects upon her health. Apart from asthma, she has hepatitis C and suffers from vitamin C deficiency. Since March 2003 she has been wheelchair bound because of peripheral neuropathy to her lower limbs secondary to small vessel vasculitis. Mr John Lyons, a mental health nurse to whom she was referred in early 2003 by her general practitioner, reported that she was suffering from "severe depression, combined with multiple long-term psychosocial issues with origins from prejudicial childhood experiences". At the end of that year a psychiatrist, Dr Samuels, also diagnosed substance-induced persisting dementia, and after a further consultation in 2004 he thought it possible that she had the symptoms of post-traumatic stress. 9 It seems that she also developed a gambling problem, although the evidence about this is rather spare. She told Dr Samuels that she had been spending her Centrelink payments in gambling on poker machines and that, as a result, her rent and other bills were not being paid. For how long that had been going on is not clear. She told Mr Joseph Hillard, the author of the pre-sentence report, that her offence was "directly the result of her drinking and gambling". That said, all of the various experts who provided reports saw her alcoholism as the central issue to be addressed and none of them referred to the gambling as a separate problem to be dealt with. 10 At the time of sentence, however, her future was not entirely bleak. She had had the benefit of a stable relationship for several years with a responsible man, whom she had married in March 2003. He gave evidence, and it is apparent that he had been and remained supportive of her, and had done his best to help her deal with her drinking and her health problems. While she was still drinking heavily on a daily basis, she had reduced her intake to some extent. His Honour, having described most of her life as "disorganised and dysfunctional", observed that "her present state probably represents a period of greater stability" than she had experienced since her teenage years.

Sentencing judge's approach 11 His Honour recognised the undoubted seriousness of the offence and the need for deterrence, accepting that the applicant had to establish "very special or exceptional circumstances" to avoid a full-time custodial sentence. No doubt, that expression was derived from the judgment of Carruthers AJ in R v Howe [2000] NSWCCA 405 at [13], where his Honour referred to "the long line of authority … in which it has been held that general deterrence is a predominant consideration when sentencing for offences of defrauding the revenue, and that a sentence of full-time custody is required unless there are very special circumstances or, as is sometimes said, exceptional circumstances or extraordinary circumstances". 12 In the present case his Honour distinguished between frauds based on greed and those based on "a perceived need", acknowledging that the latter still called for custodial sentences in the absence of "very special circumstances". This was a reference to R v Purdon (NSWCCA 27 March 1997 unreported) per Hunt CJ at CL at 7. He found that the applicant's offence was the product of perceived need, adding that it was "certainly not a case where the offender set out to create circumstances where she would be able to defraud the revenue". He later said that the offence "represented not a deliberate decision to embark upon a criminal offence but to allow to continue, and to positively assist in the continuation of, payments to which, at one stage, the offender had been entitled but to which, upon her surrendering the care of her child to her mother, she ceased to have any entitlement". He concluded that "ultimately, her gambling and, more particularly, her drinking addiction meant that she needed every cent she could get to feed that habit". 13 It was in this, in combination with a series of other factors, that his Honour found the special circumstances justifying the course which he took. Those other factors were as follows: (1) her reduced culpability arising from her severe alcoholism, which was itself "a by-product of her traumatic adolescent years"; (2) her admissions in the Centrelink investigation and her plea of guilty, entered upon her arraignment in the District Court; (3) the absence of any relevant criminal history; (4) the "parlous" state of her physical and psychological health, including her confinement to a wheelchair; (5) her relative stability, with the support of her husband, at the time of sentence; (6) the unlikelihood of her committing further offences, certainly of the kind under consideration.

The appeal 14 In this Court the Crown prosecutor submitted that, quite apart from the order that the respondent be released on recognisance, the sentence of imprisonment for 21 months is manifestly inadequate. However, his submissions were directed primarily to the fact that the sentence had been wholly suspended. It was argued that his Honour fell into error in classifying the offence as one driven by perceived need and that, in any event, that finding was given a significance that it did not deserve. Generally, it was argued that there were not the special circumstances justifying a disposition other than a full-time custodial sentence to be actually served. 15 On the question of perceived need, it true that his Honour found that the applicant had squandered the proceeds of her fraud on alcohol and gambling rather than spending them on the necessities of life. In this respect, the case is very different from R v Aller [2004] NSWCCA 378, to which reference was made by counsel for the respondent. Although the offender in that case had spent some of the proceeds of her offences on gambling, the sentencing judge found that her primary motivation was to obtain money to support her seriously disabled son. So also is it different from Purdon (supra) in which the offender had spent the money in caring for her children and buying things for the household, in the absence of adequate support from her estranged husband. 16 In the present case gambling appears to have been a secondary consideration. In context, I take his Honour's reference to perceived need to be a recognition that her offences were driven by her alcoholism (as, his Honour found, had been her previous offences.) Moreover, that alcoholism was the product of the sexual abuse which she had endured when she was still an adolescent. In that sense, the notion of perceived need is directly related to the first of the six factors set out above, that is, her reduced culpability arising from her addiction. 17 In R v Henry (1999) 46 NSWLR 346, Wood CJ at CL and Simpson J devoted most of their judgments to the relevance of drug addiction to sentencing. What they wrote is, of course, equally applicable to alcohol addiction. Adapting the words of the Chief Judge to the present case, it could be said that the respondent's addiction "was not a matter of personal choice but was attributable to" events for which she "was not primarily responsible": Henry in par 273(ii) (p 398). It could also be said that her alcohol abuse began when she was young, when her "ability to exercise appropriate judgment or choice was incomplete": ibid. 18 The observations of Simpson J in pars [336-348] (pp 410-413), with which I respectfully agree, are also apposite. Directly on point, her Honour observed at par [336] (pp410-11): In this Court, one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease. 19 Viewed in this way, the respondent's offence could fairly be described as the product of perceived need rather than greed. This, in any event, was but one of a number of matters upon which his Honour relied to find special or exceptional circumstances, and it is important to remember that it was in the combination of those matters that he found the justification for the course which he took. Even the poor state of her health was not considered, standing alone, to be sufficient to avoid a term of actual custody, his Honour saying no more than that in that respect the case "falls close to the borderline…". 20 Clearly, this is a most serious offence, involving a substantial sum of money obtained by persistent fraud over an extended period of time. The wholly suspended sentence which his Honour passed was undoubtedly a very lenient outcome. Nevertheless, it cannot be said that it was not open to his Honour to find in the evidence the exceptional circumstances warranting that disposition. This was a very sad case, given the respondent's background. Although she now has the support of her husband, she clearly has a long way to go to deal with her alcohol addiction. Nevertheless, it was a case in which it was appropriate "for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case": Henry, per Simpson J at par [344] (p412). 21 I would dismiss the appeal. 22 Since preparing these reasons I have had the benefit of reading in draft the judgment of James J. Of course, this case turns on its own facts and I agree with his Honour's concluding observation. 23 BELL J: I agree with Hidden J **********

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