Regina v Wood

Court of Criminal Appeal (NSW)|2005-06-22|Before: Spigelman CJ, Howie J

JUDGMENT OF: Spigelman CJ at 24, 26; Hunt AJA at 25; Howie J at 1

DECISION: Leave to appeal is granted but the appeal is dismissed. The sentence on the first count is to commence from today, 22 June 2005, and is to expire on 21 July 2005. The sentence for the second count is to commence on 22 July 2005 and is to expire on 21 August 2005. The sentences for the third and fourth counts are to commence on 22 August 2005 and are to expire on 21 September 2005.

CATCHWORDS: Criminal Law - Sentence - Social Security fraud - short custodial sentences imposed - whether evidence of effect of sentence upon applicant's retarded daughter so exceptional as to require non-custodial sentences - no error in exercise of judge's discretion.

Crimes Act 1914 (Cth) - s 29D LEGISLATION CITED: Criminal Code 1995 (Cth) - s 135.1(5) Crimes (Sentencing Procedure) Act 1999 - s 5(2)

R v Bednarz [2000] NSWCCA 533 CASES CITED: R v Aller [2004] NSWCCA 378 Markarian v The Queen (2005) 215 ALR 213

G. Walsh - Crown COUNSEL: C. Jeffreys - Applicant

Commonwealth DPP - Crown SOLICITORS: Jeffreys & Associates - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/708

SPIGELMAN CJ HUNT AJA HOWIE J

WEDNESDAY 22 JUNE 2005 REGINA v FLORENCE JUNE WOOD Judgment 1 HOWIE J: On 27 August 2004 the applicant appeared in the District Court before Hosking DCJ and adhered to her pleas of guilty made in the Local Court on the following charges: Charge 1: Between about 22 December 1988 and 5 December 1992 at Gosford in the State of New South Wales did defraud the Department of Social Security, a department of the Commonwealth, in that she obtained a Widow's Pension from that department in the name Florence June Elliott when in fact (and without disclosing that) she was a member of a couple legally married to Neville John Wood on 22 May 1977, in breach of s 29D Crimes Act 1914 (Cth) . Charge 2: Between about 17 December 1992 and 30 June 1997 at Gosford in the State of New South Wales, did defraud the Department of Social Security, a department of the Commonwealth, in that she obtained an Age Pension from that department in the name Florence June Elliott when in (and without disclosing that) she was in receipt of an Age Pension from that department in the name Florence June Wood, in breach of s 29D Crimes Act 1914 (Cth) . Charge 3: Between about 1 July 1997 and 23 May 2001 at Gosford in the State of New South Wales, did defraud the Commonwealth Services Delivery Agency, a public authority under the Commonwealth, in that she obtained an Age Pension from that agency in the name Florence June Elliott when in fact (and without disclosing that) she was in receipt of an Age Pension from that agency in the name Florence June Wood, in breach of s 29D Crimes Act 1914 (Cth) . Charge 4: Between about 24 May 2001 and 11 February 2003 at Gosford in the State of New South Wales, did dishonestly cause a loss to another person, namely the Commonwealth entity, the Commonwealth Services Agency, knowing that such loss would occur, in that she obtained an Age Pension from that agency in the name Florence June Wood, in breach of s 135.1(5) Criminal Code 1995 (Cth) . 2 The first three charges each carried a maximum penalty of imprisonment for 10 years. The fourth charge, an offence under the Criminal Code (Cth), carried a maximum penalty of imprisonment for 5 years. 3 On 7 October 2004 the applicant was sentenced to imprisonment for one month on each charge. The sentences in respect of the first three charges were made cumulative and that in respect of the fourth charge made concurrent with the sentence imposed on the third charge. In other words the applicant was sentenced to a total sentence of 3 months imprisonment to commence from 7 October 2004 and to expire on 6 January 2005. On being satisfied that the applicant had lodged an application for leave to appeal to this Court, the Judge granted her bail. The applicant has, therefore, served no part of the sentences imposed upon her. 4 The facts can be briefly summarised. The applicant sought and received a widow's pension under her former married name of Elliott in circumstances where, although Mr Elliott was dead, the applicant was lawfully married to Neville John Wood. Subsequently, the applicant applied for and received an Aged Pension in her married name of Wood, while at the same time continuing to receive a pension in the name of Elliott. The applicant operated two accounts in different banks, one in the name of Wood and the other in the name of Elliot into which she had the pensions paid. 5 The applicant was born on 16 November 1932 and married Leslie Elliott on 10 September 1949. They were divorced many years later and Mr Elliott died on 13 May 1983. The applicant married Neville Wood on 21 May 1977. The applicant was paid a widow's pension from December 1988 to 5 December 1992 in the name of Elliott. She transferred to the aged pension under the same name from 17 December 1992 to 11 February 2003. The pension claim form originally filled in by the applicant indicated that her married status was "widowed" from her deceased partner, Mr Elliott. When answering a question in that form asking, "Have you been known by or are you sometimes known by any other names?" she answered "No". The applicant did not reveal that at the time she was married to Mr Wood, although she was then living apart from him. Fortnightly payments of the pension were paid into a Westpac account opened by the applicant on 16 October 1986. 6 The applicant was also paid the aged pension from 17 December 1992, having applied for that benefit two days earlier. Her claim form stated that her partner was Neville Wood with whom she was then living. When answering a question in the claim form asking, "Have you ever claimed Social Security Benefit Pension or Allowance before?" she answered "No". When asked "Do you or will you get money from any other source?" she indicated "No". Of course those answers were false because the applicant was receiving a pension in the name of Elliott. 7 As a result of these frauds upon the Commonwealth the applicant received the sum of about $151,170 over a period in excess of 14 years. It is apparent that the applicant had other legitimate sources of income during this period although they were not disclosed to the Commonwealth. The applicant's frauds came to light by routine checks administered by the department. When investigating officials initially interviewed the applicant about the pensions she received she denied that she used the name of Elliot until confronted with documents in that name taken from her handbag. She explained her frauds on the basis that she was "in a lot of debt and broke the law by getting the money I was not entitled to". In relation to the fraud in the name of Elliot, the applicant told investigators that her daughter-in-law had just been killed and she went to look after her son and his children. As she had to give up her job to do so, she applied for the widow's pension. 8 The applicant gave evidence during the sentence proceedings and explained her conduct on the basis that she was in need of money to help care for her grandchildren and she was not prepared to ask her children for help. She admitted that she knew that what she was doing was wrong but believed she had no other way to survive. The judge accepted that this was a case of pressing need rather than greed. 9 By the date of sentencing the applicant had repaid the money that she had obtained by these frauds. She had sold most of her possessions of any value and borrowed the rest from her children by way of loan that she was repaying weekly. The Judge accepted that the repayment was a significant burden on the applicant and stated, "this puts the offender into a different category to an offender who repays nothing in circumstances like this". 10 The applicant was 71 years of age when she came to be sentenced and was not in good health suffering from asthma, coronary heart disease and was developing osteo-arthritis. In light of the period and extent of offending, little weight could be given to these matters. There was evidence from a psychiatrist that she was suffering from depression and had been suicidal. There was evidence before the Judge that, because of the applicant's physical and mental state, she would be "significantly adversely affected by a custodial sentence". However, there was nothing in the medical or psychiatric evidence that itself suggests that the Judge was in error in imposing a short custodial sentence upon the applicant. 11 There are two grounds of appeal relied upon:

The trial judge erred in failing to find that the imposition of a full time custodial sentence upon the applicant would result in hardship to the applicant's daughter Kaylene so "extreme" as to warrant the exercise by the court of it's merciful power to impose less than what would otherwise be a proper sentence

The sentence imposed was in the circumstances manifestly excessive. 12 It is argued that the Judge failed in finding that the hardship resulting from the imposition of a custodial sentence was such "as to warrant the exercise by the court of its merciful power to impose less than what would otherwise be a proper sentence". The hardship relied upon is that arising from the applicant's relationship with her mentally retarded daughter Kaylene. One of the difficulties with this ground of appeal is that it is clear that the sentences imposed were less than would otherwise be appropriate if the evidence relating to Kaylene were disregarded. It could not seriously be argued that sentences totalling three months imprisonment adequately punished the applicant for her criminal conduct. The ground really challenges a finding of fact made by the Judge to the effect that considerations relating to Kaylene resulted in an exceptional case justifying a substantial reduction in the otherwise appropriate sentence but were not such that the applicant could avoid entirely a non-custodial sentence. 13 Put briefly the uncontested evidence was that the applicant's daughter Kaylene, who was born in 1958, is severely mentally handicapped and has lived, until recently, in a nursing home, called Sunshine Home, since May 1968. She functions at the equivalent age of a normal four year old and suffers from numerous physical ailments such that her mobility has suffered considerably. The applicant has been and continues to be the main carer of Kaylene and this has resulted in both emotional and financial burdens for the applicant. Kaylene has never been separated from the applicant for more than two weeks in the whole of her life. There was evidence, which the Judge accepted, that the inability of the applicant to visit and attend to Kaylene's needs for any significant period would have an extremely detrimental effect upon Kaylene. In particular she would not be able to comprehend the failure of her mother to appear at the home and to look after her as she does every alternate week for three or four days at a time. As a result Kaylene would become depressed. There was evidence that an enforced separation from her mother might adversely affect the daughter's already failing health. That evidence, given by the Accommodation Co-ordinator of Sunshine Home, was principally as to the effect upon Kaylene's mental health of a separation from her mother of a period of time of something in the order of 6 to 12 months. 14 I do not wish by referring to the evidence on this subject so briefly to be taken as minimising its significance. There is no doubt that it was the type of evidence that might, in an appropriate case, materially affect the exercise of the sentencing discretion to a very significant degree. And so it did in the present case. His Honour stated:

There is no doubt that the incarceration of the offender will be very difficult for Kaylene both emotionally and perhaps even physically.

In these circumstances, it is my view, that while this factor is not sufficiently exceptional to avoid a custodial sentence altogether, it is sufficiently exceptional to warrant a significant reduction in the sentence which would otherwise be appropriate for her.

After referring to and quoting from R v Bednarz [2000] NSWCCA 533, the Judge went on:

In my view this is case of truly exceptional hardship.

In my view the Director of Public Prosecutions was correct in submitting that because Kaylene's physical needs are catered to in the Sunshine Home it is not a case of such an exceptional nature as to warrant avoiding a custodial sentence, which would otherwise be inevitable. However, in my assessment of it, such will be the difficulties, as I have outlined them, which Kaylene will face, that this is a case which is truly exceptional so as to justify a considerably reduced sentence on the sentence that would otherwise be appropriate for this Offender, even in the circumstances of this case (Kaylene's circumstances apart). 15 It is not suggested that the Judge erred in his approach to this evidence. Rather the argument is that he should have gone further than he did and found that the circumstances surrounding Kaylene were such that he should have imposed a non-custodial sentence. It was argued on behalf of the applicant that a reading of the remarks on sentence results in a conclusion that his Honour thought that he was constrained to impose a full time custodial sentence and had no other alternative because of authorities of this Court stressing the seriousness of the offence and the requirement that it be properly punished. It was submitted that had his Honour been aware of the decision of this Court in R v Aller [2004] NSWCCA 378, a case decided after the Judge had sentenced the applicant, that he would not have felt so constrained. 16 There is in my view nothing in his Honour's remarks indicating that he was under the impression that he was so constrained and believed that he had no alternative other than to impose a custodial sentence regardless of the strength of the exceptional circumstances arising from the evidence concerning Kaylene. Aller was simply a case where the subjective circumstances of the offender and her invalid son were so exceptional that it was held to be within the particular sentencing judge's discretion to impose a sentence of imprisonment but to suspend it. That case says nothing about the Judge's exercise of his discretion in the present case. 17 As I have already indicated, the finding as to the weight to be given to this evidence in light of all the other relevant circumstances was part of a complex sentencing task that the Judge approached in a completely principled way and with considerable compassion for the applicant and her difficult life. 18 Minds might reasonably and legitimately differ as to the weight to be given to the evidence concerning Kaylene and the ultimate sentences to be imposed upon the applicant. I am not satisfied that his Honour erred in the finding that he made about the effect of that evidence or the sentence that he determined was appropriate after due consideration of all the relevant objective circumstances of the offending and the subjective circumstances of the applicant. Before this Court found error on the part of the sentencing judge, it would need to be persuaded that the resulting sentence was simply not open to him. I am far from satisfied that this is the case. 19 A majority of the High Court recently emphasised the width of the discretion exercised by a sentencing court and also stressed the respect that an appellate court is to accord the decision made at first instance. In Markarian v The Queen (2005) 215 ALR 213 at [27] it was stated (footnotes omitted):

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 20 It should be noted that the applicant's age, her physical health and the circumstances of her relationship with Kaylene all existed at a time when the applicant was committing the offences for which she was to be punished. It is important that there be no suggestion that a person can offend in a significant and deliberate way and yet rely upon personal factors existing during the time of the offending to be treated in a manner markedly different from other offenders. It is trite that age or ill health cannot be seen as a licence to commit crime with impunity nor can the fact that the offender has dependants who will be subject to exceptional hardship by the imposition of punishment upon the offender. 21 On the hearing of the appeal, further material was placed by way of an affidavit before this Court as to the current position of Kaylene. It appears that since sentence was imposed upon the applicant and as recently as 6 June last, that Sunshine Home has closed and Kaylene is now a resident of a community house at Parklea with six other residents. Ms Rogers, who gave evidence before the sentencing judge, has stated in a report dated yesterday that there has been, as a result of the change of residence, a total disruption of the routine and environment of the residents including Kaylene. The report indicates that although some long-term staff from Sunshine Home are present to support Kaylene, the applicant is now more than ever the main support for her at this time. The applicant now takes active care for Kaylene 4 days every week from Thursday to Sunday rather than every second week as was the situation at the time when his Honour sentenced the applicant. It is stated in the report by Ms Rogers that it would take a period of about 18 months for Kaylene to settle into her new surroundings. 22 The material was placed before this Court on the basis that, if the Court came to the conclusion that the sentencing judge's discretion miscarried in respect of the sentencing of the applicant and in particular in respect of the way he treated the material relating to Kaylene, this Court would take the new arrangements concerning Kaylene into account when re-sentencing the applicant. But in my opinion, even if this Court were required to take into account that material in determining what was now the appropriate course to be adopted in the sentencing of the applicant, it does not significantly change what was the situation before his Honour so that this Court would be minded, as his Honour was not, to impose a non-custodial sentence. 23 Having rejected this ground of appeal, I do not see how the sentence can be otherwise manifestly excessive. I appreciate that there could be some room for scepticism as to the ability of a sentencing court to discriminate between the appropriateness of a sentence of three months imprisonment on the one hand and a non-custodial sentence on the other. There has been from time to time concern that sentences of less than six months imprisonment are being imposed inappropriately at least in relation to State offences. This has resulted in a requirement that a court give reasons explaining why it has imposed a sentence of imprisonment of 6 months or less rather than some non-custodial option: see s 5(2) of the Crimes (Sentencing Procedure) Act (NSW). But this was a case where the Judge was decreasing the otherwise appropriate sentence by reason of factors subjective to the applicant and simply reached the point where he believed it was not appropriate to decrease the punishment further. In my view he was entitled to come to that view and there is no reason for this Court to interfere in the exercise of that discretion. 24 I propose that leave to appeal be granted but the appeal be dismissed. Because the applicant has been on bail since the date of the sentence it is necessary for the court to recommence the sentences and specify the dates for the commencement and expiration of the sentences. The sentence on the first count is to commence from today and is to expire on 21 July 2005. The sentence for the second count is to commence on 22 July 2005 and is to expire on 21 August 2005. The sentences for the third and fourth counts are to commence on 22 August 2005 and are to expire on 21 September 2005. She is to be immediately taken into custody. 25 SPIGELMAN CJ: I agree. 26 HUNT AJA: I also agree. 27 SPIGELMAN CJ: The orders of the Court are as indicated by Justice Howie.

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