Regina v White

LEGISLATION CITED : Crimes Act (1914) (Cth) Justices Act 1902 (NSW) R v Anderson 32 A Crim R 146 R v Boyle (1987) 34 A Crim R 202 R v Bradley (1997) 137 FLR 314 R v Bugeja [2001] NSWCCA 196 R v Cacciola (1998) 104 A Crim R 178 R v Edwards (1996) 90 A Crim R 51 CASES CITED: R v Herrera (unreported) NSWCCA 6 June 1997 R v Sinclair [1990] 51 A Crim R 418 R v Winchester (1992) 58 A Crim R 345 R v Wirth (1976) 14 SASR 291 Regina v Purdon (unreported) NSWCCA 27 March 1997 Regina v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 DPP v El Karhani (1990) 21 NSWLR 370 DECISION : Application for leave to appeal against sentence granted; Appeal allowed in relation to counts 2, 3, 4 and 5

1 BELL J: This is an application for leave to appeal against the severity of sentences passed upon the applicant in the District Court at Newcastle on 6 December 2000. On 17 November 2000 the applicant pleaded guilty to an indictment containing five counts of imposition upon the Commonwealth by an untrue representation made by omission with a view to obtain benefit, contrary to s 29B of the Crimes Act (1914) Cth ("the Act").

2 The five counts related to a course of conduct involving the applicant making claims for and receiving various benefits to which she was not entitled in the name of Angela Terese Johns from the Department of Social Security, now the Commonwealth Services Delivery Agency.

3 At all relevant times the applicant was receiving benefits in the name of Angela Terese White. The applicant pleaded guilty to a single count of imposition contrary to s 29B of the Act at the Newcastle Local Court on 15 August 2000. She was committed to the District Court pursuant to the provisions of 51A of the Justices Act (1902) NSW.

4 The original charge was expressed to cover the entire period during which the applicant had obtained dual benefits. The Director of Public Prosecutions for the Commonwealth proceeded on indictment in the District Court, preferring five counts which reflected both the differing benefits that the applicant had claimed over the years and the change in name of the relevant Commonwealth agency.

5 Count one alleged the commission of an offence between 9 August 1994 and 22 September 1994. The amount obtained by the applicant in respect of the offence charged in this count was $882.30.

6 Count two alleged the commission of an offence between 23 September 1994 and 26 January 1995. The amount claimed by the applicant in respect of this offence was $2675.70.

7 Count three alleged an offence between 24 November 1995 and 11 January 1996. The applicant obtained the sum of $1242.00 in respect of this offence.

8 Count four alleged an offence between 12 January 1996 and 30 June 1997. The applicant obtained the sum of $12,082.70 in respect of this offence.

9 Count five alleged the commission of an offence between 1 July 1997 and 8 May 2000. The applicant obtained the sum of $24,297.27 in respect of this offence.

10 The maximum penalty prescribed for an offence under s 29B of the Act was in respect of offences committed up to and including 6 April 1997, imprisonment for a period not exceeding two years, or a fine of not more than $12,000 or both. For offences committed from 7 April 1997, imprisonment for a period not exceeding two years or a fine of not more than $13,200 or both.

11 In respect of counts one and three in the indictment, s 17B of the Act applies. That section provides that where a person is convicted of one or more s 17B offences (and an offence under s 29B is one) relating to property, money or both, whose total value is not more than $2,000, and the person has not previously been sentenced to imprisonment for any Federal, State or Territory offence, the Court convicting the person is not to pass a sentence of imprisonment for that offence or for any of those offences unless the Court is satisfied that there are exceptional circumstances that warrant it.

12 The sentencing judge considered that there were exceptional circumstances warranting the imposition of custodial sentences in respect of counts one and three. In this respect his Honour took into account that the applicant did not have the means to pay a fine and that any fine imposed would not be "cut out" during the currency of a sentence of imprisonment imposed in respect of the remaining counts.

13 The applicant was sentenced as follows: count one - a fixed term of one month's imprisonment; count two - a fixed term of three months' imprisonment; - count three a fixed term of three months' imprisonment; count four - a fixed term of six months' imprisonment; count five - a fixed term of eighteen months' imprisonment with a direction that the applicant be released on a recognisance release order after nine months. Each of the sentences were to be served concurrently.

14 The sentencing judge made a reparation order in favour of the Commonwealth in the sum of $37,461.14.

15 The applicant lodged an application for leave to appeal within time on 13 December 2000.

16 On 28 February 2001, the applicant was granted bail pending the hearing of this appeal. As at the date of her release on bail she had served two months, three weeks and one day of the sentences imposed upon her.

17 A statement of agreed facts was in evidence before the sentencing judge. The applicant gave evidence at the sentence hearing. His Honour summarised the subjective material at pages 5-10 of his reasons on sentence. Briefly, the applicant was twenty-nine years of age when she appeared for sentence and had no prior criminal record. She was living in rented accommodation at Raymond Terrace and caring for her son Luke, who was aged four years. At the time she was no longer living with Luke's father.

18 Prior to her relationship with Luke's father the applicant had lived in a domestic relationship with another man for around five years. They resided in the Macksville area. When this relationship came to an end the applicant returned to Newcastle. It was at this time that she commenced making false claims upon the Department of Social Security. His Honour accepted that at the time of the termination of the relationship with her first partner the applicant found herself with nothing and that this situation had led to her acquiring a credit card debt of some $3,000 and a further debt of $2,000 owed to family members.

19 It was the applicant's evidence that she always used the name Angela White, this being her mother's name. Her birth certificate was in the name of Angela Johns, which was her mother's maiden name. She had been required to obtain her birth certificate some years earlier when applying for employment at a hotel. The inference, which the sentencing judge drew from the applicant's evidence on this topic, was that she had acquired the documentation in support of the two identities innocently.

20 At the time of her sentencing the applicant was employed by the Hunter Area Pathology Service. She had held that employment for three and a half years on a part-time basis. Character references were tendered on the applicant's behalf from Pamela Stanbury and Sharon McReynolds. The references attested to the applicant as being a person of otherwise good character. The sentencing judge proceeded upon the basis that the applicant was generally a person of good character.

21 His Honour noted the contents of a pre-sentence report prepared by Susan Passmore of the Maitland District Office of the New South Wales Probation and Parole Service. Ms Passmore's inquiries established that the applicant was living in a modest rented home, and that the child's father did not have any structured commitment to maintenance or access to him.

22 In Ms Passmore's view the applicant always held a strong motivation to be in employment. The Hunter Area Pathology Service was reported to value her performance. His Honour noted Ms Passmore's observation that throughout her inquiries the applicant had been portrayed as an intelligent, private and independent woman, considered by her family and peers to be a person unlikely to commit offences of this nature. Further, Ms Passmore's inquiries established that the applicant's son was of the utmost importance to her, and that so much had been displayed through her caring and dedicated approach to motherhood.

23 After reviewing the evidence led at the sentence hearing, the judge observed: "What does materialise from the evidence, particularly the pre-sentence report, is that the offender is a loving and caring mother whose life, to a large extent, revolves around her child. Otherwise she seems to lead a modest lifestyle".

24 The judge went on to consider whether the applicant's motivation for the commission of the offences might be characterised as involving need or greed. He concluded that the applicant was motivated by perceived need or desire on her part to better provide for her son. His Honour went on to observe: "This motive could not be said to arise out of need in the sense of desperation, but nor could it in my view be said to arise out of greed in the sense of sheer avarice. For sentence purposes it seems to me that I should regard the motive of the offender as falling somewhere between the two extremes and probably towards perceived need rather than greed".

25 The principal challenge advanced on the applicant's behalf was to the sentence imposed with respect to the fifth count and related to the application of s 16G of the Act in combination with the discount allowed by the sentencing judge in recognition of the applicant's early pleas of guilty. Section 16G of the Act requires a sentencing court to take into account the absence of remissions when determining the length of the head sentence and to adjust the sentence accordingly.

26 In DPP v El Karhani (1990) 21 NSWLR 370 at 385 the court observed: "It is not inappropriate to take into account that throughout Australia the reduction of custodial sentences for remissions and the like is about one third of the sentence. Again, this is not a fixed ration, but given the individualised "adjustment" called for by s 16G, it is an appropriate starting point"

27 On the applicant's behalf it was submitted that the head sentence of eighteen months' imprisonment imposed on count five was excessive. Upon the assumption that the sentencing judge's starting point was the maximum, it was contended that the proper application of s 16G would have resulted in a sentence of about sixteen months' imprisonment.

28 In Ms Burgess's submission this was not a case in which the maximum penalty would have been justified in any event. It is to be noted that in El Karhani the Court made clear that what is required is that the absence of remissions be taken into account in determining the length of the head sentence. The Court rejected the contention that a fixed formula applies. In this respect the Crown drew attention to the observations of Meagher JA in R v Bradley (1997) 137 FLR 314 at 315. "It is a grave mistake, in my view, to try to reduce criminal sentencing to mathematical formulae, which is the very vice El Karhani's case is authority to the contrary of."

29 I am not persuaded that the sentencing judge would have fallen into error had he fixed as his starting point a sentence very close to the maximum in respect of the fifth count. This count involved the sum of over $24,000. It embraces a course of conduct over some two years and ten months. This period of offending involved a return to a course of claiming double benefits after a break.

30 Ms Burgess submitted that the sentencing judge erred in allowing a discount of 20 per cent for the applicant's plea of guilty as distinct from giving her a discount in this respect of the order of 25 per cent. It was acknowledged that the guideline judgment concerning the discount to be given upon a plea of guilty in Thompson v Houlton (2000) 49 NSWLR 383 does not apply in the sentencing of Commonwealth offenders. However, it was contended that it provided assistance in determining the appropriate discount. This indeed was the approach taken by the sentencing judge. It is an approach that receives support from the decision in R v Bugeja [2001] NSWCCA 196.

31 Accepting that it was appropriate for the sentencing judge to have regard to the principles set out in Thompson v Houlton, I do not consider that he can be said to have erred in the exercise of his discretion by determining that the appropriate discount to reflect the utilitarian value of the pleas in the circumstances of this case was one of 20 per cent.

32 The Crown conceded that the sentencing judge may have fallen into error with respect to the head sentence imposed on count five. In my view this was an appropriate concession. Against a statutory maximum of two years imprisonment, and after due allowance is made under s 16G of the Act for the absence of remissions in this State, and after allowing a discount of 20 per cent to reflect the utilitarian value of the plea of guilty, a sentence of eighteen months bespeaks error.

33 I am thus of the view that the applicant has made good her challenge that the sentencing judge erred and it flows from this that it is appropriate for this Court to give consideration to resentencing the applicant.

34 It is to be noted that the applicant also challenged the sentences imposed in respect of counts one to four in the indictment. It was submitted that the error in the application of s 16G of the Act, in combination with the discount for timely pleas of guilty, may be thought to have infected the sentences imposed with respect to these four counts. I am not persuaded that that is so.

35 More generally it was submitted that having regard to the applicant's subjective circumstances his Honour erred in concluding that he was constrained to impose a sentence of full time custody in excess of three months' imprisonment.

36 The Crown directed attention to the long line of authority in this Court, which serves to emphasise that cases of fraud upon the social security system require the imposition of a sentence of full time custody, unless there exist very special circumstances justifying some lesser punishment: R v Winchester (1992) 58 A Crim R 345; R v Purdon (unreported) NSWCCA 27 March 1997.

37 The Court received affidavit evidence. The affidavit of the applicant, affirmed on 3 September 2001, set out her current employment situation, and detailed the repayments that she is making to the Commonwealth. She is currently repaying $200 per fortnight to the Commonwealth Services Delivery Agency $120 per fortnight is deducted from her "parenting payment single" benefit and $80 per fortnight is directly deducted from her bank account.

38 Presently the applicant's repayment is applied in reduction of an overpayment of $5021.62, which is unrelated to the counts the subject of the indictment. As at 24 August 2001 the applicant had repaid $2784.86 of this debt, leaving an outstanding balance of $2336.76. Upon the assumption that the applicant continues to make repayments at the present rate, that overpayment will be repaid in full in approximately five months' time. Once that account is finalised, the applicant's weekly repayment of $200 will be applied to the overpayment the subject of the counts in the indictment.

39 Upon the assumption that the applicant continues to make repayments the sum received by her as the result of her crimes will have been repaid in approximately seven years' time.

40 The applicant presently receives no financial assistance from Luke's father. She is paying $150 per fortnight in school fees for Luke to attend St Phillip's Christian College. After he has been at that school for one year the applicant will be in a position to apply to have the fees reduced. In this event she intends paying the sum saved thereby directly to the Commonwealth in reduction of her debt.

41 The applicant stated that at the time of the sentence hearing she had made arrangements for Luke to live with her aunt. However, she decided that this would impose too much strain upon the aunt, who at that time was caring for her mother. The applicant arranged for her sister to look after Luke. The sister has a son aged five years whom she is raising on her own. The applicant believes that it was difficult for her sister to look after the two young boys by herself.

42 The applicant asserted her belief that it was highly likely that she would lose her employment were she to be returned to prison. So much was confirmed by a letter from the Hunter Area Pathology Service, which was annexed to the affidavit of Mary Ann Spiers, affirmed 31 August 2001.

43 A letter from Ms Grady, Luke's kindergarten teacher, was also in evidence. It attested to the disruption suffered by Luke during the period that his mother was in custody. He is described as showing signs of stability since her return to the family. Ms Grady commented that in some areas of scholastic performance Luke was considerably below the level of that of his peers. Ms Grady prepared a home program for the applicant to work on with Luke. His progress in nominated areas has improved from 15 per cent to 62 per cent following the implementation of the home program. This improvement has assisted in Luke's general ability to function in class activities.

44 Section 16G(p) of the Act requires the sentencing court to have regard to the probable effect that a sentence would have upon a person's family or dependants. It has been held that this provision does not materially alter the common law; R v Sinclair (1990) 51 A Crim R 418; R v Herrera (unreported) NSWCCA, 6 June 1997, per Hunt CJ at CL. It is necessary to identify exceptional circumstances before hardship to a prisoner's family might be taken into account as justifying a decision to impose an alternative sentence to one of full time custody: R v Edwards(1996) 90 A Crim R 510; R v Wirth (1976) 14 SASR 291 at 295-6 and R v Cacciola (1998) 104 A Crim R 178 at 182 - 183.

45 Ms Burgess submitted that the common law rule that hardship to third parties was not a relevant consideration in sentencing was subject to a recognised exception (albeit one that was not automatically applied) in a case where the family circumstances were such that the imprisonment of one parent effectively deprived a child of parental care, in this regard in her written submissions, she drew attention to the discussion in R v Boyle(1987) 34 A Crim R 202 at 205 where Burt CJ, after setting out the statement of the principle as it appears in D A Thomas Principles of Sentencing (2nd ed, 1979) at p212, observed: "The Australian authorities would seem to me to reflect the same approach although they consistently emphasise that the general principle to which I have referred will only be departed from 'in extreme cases'; see Wirth (1976) 14 SASR 291 at 294 per Bray CJ or, as Wells J expressed it in that case (at 296) of the report, when to apply the principle would be 'to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they (the sentencing judges) should draw back."

46 In that case the Court considered the facts established it as an extreme case. The applicant was the mother of four children, the eldest of whom was intellectually handicapped. She was a good and caring mother who was unable to meet mortgage repayments on the family home from the proceeds of her supporting parent's benefit. She had resorted to prostitution on occasions to support her family. The Court accepted that she had become involved in the distribution of cannabis as a way out of her financial difficulties. Imprisonment had what was described as a disastrous impact upon the applicant's family in that case.

47 In R v Herrera (unreported) NSWCCA, 6 June 1997, there was evidence that the applicant's four year old child was exhibiting behavioural difficulties as a result of her imprisonment. Hunt CJ at CL held that no error had been found in the approach adopted by the sentencing judge. His Honour observed: "[H]ardship to the prisoner's family operates in mitigation only where it is sufficiently extreme, beyond the hardship which inevitably results to a family when a parent is incarcerated, to warrant a non-custodial sentence". 48 In the Crown's submission the facts of this case were broadly comparable with those in Herrera and did not amount to the sort of exceptional circumstances which might justify a sentence other than one of full time custody.

49 Both the Crown and Ms Burgess drew attention to the observations of Street CJ in R v Anderson 32 A Crim R 146: "But in some cases, at the margin, the disproportionate disruption done by the loss of employment and possible future unemployment may properly be a consideration to be taken into account, particularly where the sentencing judge has to choose between a standard custodial sentence and the use of periodic detention".

50 In the Crown's submission, the prospect that the applicant would lose her employment was not a consideration which would justify a non-custodial sentencing option in a case involving sustained imposition on the revenue.

51 In evidence given at the sentence hearing the applicant explained that she had saved up her leave entitlements with a view to taking a prolonged break when Luke commenced attending school. She did not have anyone to assist her in taking him to and collecting him from school. A practical outcome of her accruing substantial leave entitlements was that she did not lose her job during her period of incarceration. As I have noted, she has been making regular payments to the Commonwealth since she resumed employment following her release on bail.

52 In the event that the applicant is returned to custody, it appears inevitable that she will lose her employment and it is reasonable to assume that she will have difficulties in obtaining other employment. Her capacity to make good her commitment to repaying her debt will thus be reduced. The hardship to Luke will be increased.

53 To return the applicant to full time custody, in the circumstances of this case, involving as it will subjecting the child to the loss of his mother for a second time, seems to me to narrowly bring this case within the range of those exceptional cases in which it is appropriate to have regard to considerations of hardship, such as to justify the imposition of a sentence of imprisonment to be served by way of periodic detention in respect of counts four and five in the indictment.

54 This is against a background that the applicant has served a period of close to three months' imprisonment in respect of counts two and three. I should pause to note the provisions of s 17A of the Act which requires that a court not pass a sentence of imprisonment on any person for a federal offence unless the Court, after considering all other available sentences, is satisfied no other sentence is appropriate in all the circumstances of the case. It is sufficient to note, for the reasons already given, that I am of the view that no sentence other than sentences of imprisonment are appropriate in the circumstances of this case.

2 Dismiss the appeal against the severity of sentence with respect to count 1.

3 The appeal is allowed in relation to counts 2, 3, 4 and 5.

4 Quash the sentences imposed in the District Court in respect of counts 2, 3, 4 and . 5 In lieu thereof, in relation to counts 2 and 3 the applicant is sentenced to a fixed term of two months and three weeks imprisonment to date from 6 December 2000 and to conclude on 27 February 2001. Those sentences to be served concurrently.

6 In relation to count 4, the applicant is sentenced to a fixed term of imprisonment for three months to date from 14 September 2001 and to conclude on 13 December 2001, such sentence to be served by way of periodic detention.

7 In relation to count 5, the applicant is sentenced to twelve months imprisonment to be served by way of periodic detention to date from 14 December 2001 and to conclude on 13 December 2002. I direct that the applicant is to be released on a recognisance release order on 13 March 2002.

8 I confirm the order for reparation made in the District Court pursuant to s 21(b) of the Crimes Act (1914) Cth, in the sum of $37,461.14 payable to the Commonwealth.

9 The applicant is to report to the officer in charge of the Periodic Detention Centre at Tomago at 7 pm on 14 September 2001. 56 HOWIE J: I agree. In my view the only error in the original sentence was its structure in respect of count 5. Otherwise it was a sentence well within his Honour's discretion, if not the appropriate sentence to be imposed. In particular, there was no error, in my view, in his Honour's determination of the total sentence or of the fact that a 20 per cent discount was appropriate in the circumstances of this case, to mark the utilitarian value of the plea of guilty.

57 However, to return the applicant to custody now would have a further impact on her child that was not intended and should not be inflicted if there is some other way to avoid it. Taking into account that the applicant has now served three months in full time custody, I agree that the matter is now one sufficiently exceptional to permit a sentence other than full time custody to be imposed.

58 The outcome of this appeal should not be taken as an indication that generally the impact of a sentence on a child of a single parent would be sufficient to permit other than a full time sentence to be imposed for offences of the nature and seriousness as those committed by the applicant.

59 SMART AJ: I agree with the judgments that have been delivered and the orders proposed.

60 BELL J: The orders of the Court will be as I have proposed.

61 I note it is necessary pursuant to the Act for the effect of the sentence to be explained to the applicant. The Court notes that the applicant's legal advisers will explain the effect of the sentences imposed.

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