SLOWIAK v DIRECTOR PUBLIC PROSECUTIONS

2 The appellant was charged with eight counts of knowingly or recklessly making a false statement in connection with or in support of a claim for a social security payment under the Social Security Act 1991 (Cth), namely a widow allowance for herself, contrary to Section 1344(1)(a) and Section 1350 of the Social Security Act 1991. She was further charged with twenty four counts of knowingly obtaining a payment of an instalment of a social security payment under the Social Security Act of 1991, namely a widow allowance which was not payable at all, contrary to Section 1347(b) and Section 1350 of the Social Security Act 1991.

3 The appellant pleaded guilty to all counts. The offending behaviour took place between 1 December 1997 and 25 June 1999.

1. The Learned Special Magistrate erred in declining to order the Appellant's release from custody forthwith.

2. The Learned Special Magistrate erred in giving insufficient regard to the Appellant's personal circumstances.

5 In the course of argument it was submitted that the magistrate had erred in two particular respects, first that he failed to allow a reduction in penalty for the plea of guilty and secondly, that he should not have treated overpayments received by the appellant in 1995 and 1996 as matters of aggravation.

6 In an affidavit placed before this Court, the appellant's counsel deposed:-

"The appellant has since instructed me that at the time she appeared for sentence before the Learned Special Magistrate she had been too ashamed to tell her mother and family that she had committed these offences. She instructs me that she has since then told them what she has done. She instructs that her mother and family are supportive of her and have paid on her behalf the amount of $13,964.24 that sum completing restitution in full of the total sum $15,279.89 ordered by the Learned Special Magistrate."

7 In Kovacevic v Mills (2000) 207 LSJS 158, in their joint judgment, Doyle CJ and Mullighan, Bleby and Martin JJ said at (178):

"Pursuant to s 16A(2)(f)(i), the Court is obliged to take into account any action by the appellant to make reparation in the context of contrition. As has been mentioned, the total amount received has now been repaid. It may be said that in arranging for reparation to be made, the appellant was doing no more than meeting an obligation imposed by law and repaying what he had illegally received by his own conduct. It should also be said that offenders cannot buy their way out of severe punishment by repaying what they should never have received. However, the Courts are obliged to regard reparation as a positive matter so far as an offender is concerned. In SA Police v John (1995) 181 LSJS 20, King CJ, with whom the other members of the Court agreed, said at 22:

'The fact that somebody has made the sacrifice necessary to enable full restitution to be made is an important consideration and, of course, this court encourages that course to be taken.'

There the Court was sentencing under State law but the relevant provisions in the Criminal Law (Sentencing) Act 1988 are the same: see s 10(f). There are cases where reparation has been the decisive factor in the exercise of the discretion to suspend a custodial sentence: see The Queen v Robertson (1984) 115 LSJS 51. In that case, much like the present case, reparation was made after sentence was imposed and pending appeal. King CJ, with whom the other members of the Court agreed, said, when referring to reparation as the new factor, at 53:

'The new factor is important in another way because it shows that the appellant has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him which was not available to the learned sentencing judge. I think that the combination of these two aspects of the new factor is sufficient to enable this court to intervene, bearing in mind that the appellant was in gaol from the date upon which he was remanded for sentence, 13 March 1984, to the date on which he was released on bail, 9 May 1984, a period of two months.'

In Radjevic v Police (1997) 67 SASR 478 Debelle J regarded reparation favourably even though, as here, it was made from money borrowed.

In our view, the making of reparation is an important factor in the present circumstances and it should be acknowledged in a positive way in the sentencing process. Standing alone, it should not be regarded as decisive, but along with the other matters which have been mentioned, it justifies an order for immediate release."

8 The following personal circumstances were before the court.

9 The appellant was born in Poland and her childhood was scarred by the events of World War II in Eastern Europe. As a young child, she was subjected to bombing blitzes which left her with extensive shock and a complete loss of speech for several years. This led to long term sequelae including a residual stutter, which is exacerbated when under stress. This impediment continues to have a lasting effect on her self esteem and sense of self worth.

10 The appellant undertook schooling in Poland and completed four years of a five year university degree in Pharmacology. At that time she was aged about 22. She came to Australia to visit her mother but never returned to Poland and did not complete her degree. The appellant is of above-average intelligence.

11 The appellant married at age 23. She was employed as a senior research officer at the University of Adelaide but resigned to travel with her husband, who had obtained work overseas. The appellant found work as a researcher in Port Morseby until her husband's work again necessitated moving. Upon returning to Australia, the appellant and her husband were unable to find work because of their age and they were both over qualified. Instead they put their life savings into buying a small retail business. The appellant's husband did not cope well with his lifestyle change - from successful accountant to self employed business man. He began abusing alcohol. The financial affairs of the business were controlled solely by the appellant's husband. The business became consumed by debt and was eventually closed down. These financial difficulties exacerbated the appellant's husband's alcoholism and led to marital disharmony. The marriage and the business both failed.

12 As a result of the business failure, in 1991 the appellant's husband was declared bankrupt. The family home was lost. Her husband's debts were transferred to her by default. However, The appellant resisted the pressure to declare herself bankrupt and undertook further study in an attempt to make herself more employable. Her search for work continued without success and she suffered the rejection that accompanied this long period of unemployment severely. She became depressed. This illness may well have had its origins in her childhood experiences during the war. Psychological evidence was before the magistrate. There was no challenge to the conclusion that the appellant was suffering from a major depressive illness at the time of her offending.

13 The appellant's mother saw that her daughter was suffering financial hardship and spontaneously gave her money to assist. The appellant reluctantly accepted the money and promised that it would be repaid. However, because she was unemployed she was not in a position to so. Instead she worried that her elderly mother would suffer financially and that this would have an adverse effect on her health. The appellant was consumed with guilt. The fact that she learned her mother had borrowed from friends in order to provide her with the money compounded the problem. It is clear that the appellant had a deep sense of gratitude to her mother for the support she had given to her. She was particularly grateful because of her unfortunate childhood experiences and also cited the support she was given during the period after the war when the whole family had been suffering financial hardship. The appellant's sole motive for her offending was to repay the debt to her mother. The combination of her severe depression, love for her mother and desire to repay her at all costs clouded her judgement. She was not motivated by greed.

14 The appellant is aged 59 and prior to this course of offending had lived an exemplary life. Until her period of unemployment in 1991, she maintained a strong work ethic. She has a strong social conscience and devoted time to volunteer work, visiting prisoners in jail and patients in hospital and engaged in volunteer work with St Vincent De Paul. The appellant has no prior convictions.

15 The appellant is ashamed of her conduct and is genuinely remorseful and contrite. This led to her confronting the consequences of her dishonesty and pleading guilty before the learned magistrate. The appellant has suffered distressing levels of guilt in relation to her offending which have exacerbated her depressive illness to the point of making her a significant suicide risk. She has also found the experience of being processed by the criminal justice system punitive in itself.

16 Limited reparation of approximately $1,000.00 was made, before the appellant was sentenced. She had not told her mother or wider family of her offending or that she was before the Court. She was too ashamed to do so. Following her sentencing, her mother and family were informed and full restitution has been made in the amount of $15,279.89.

17 A perusal of the learned magistrate's reasons discloses no mention of any reduction by reason of the appellant's guilty pleas. There was also no mention of remorse or contrition associated with those pleas.

18 The learned magistrate considered incidents in 1995 and 1996 to be matters of aggravation. These incidents in my view did not necessarily involve culpability on the appellant's part. It was said that she had made a false claim, an overpayment had been made and then reimbursement was made. However the information before the magistrate did not suggest any dishonesty on her part and the occasions of overpayment were equally consistent with a mistake or negligence as with other more culpable conduct. In my view these earlier matters were not aggravating factors as suggested by the learned magistrate.

19 As a result of the full restitution which has been made, and of the matters identified above it is necessary for this court to reconsider the issue of sentence.

21 The serious nature of the appellant's crimes require that a sentence of imprisonment be imposed. I fix a period of 12 months. In so doing, I allow a reduction of 25 per cent in recognition of the plea of guilty.

22 Having regard to the appellant's personal circumstances outlined above, particularly her age and poor health, I consider that she be released immediately. The orders made by the learned magistrate are varied so as to discharge the order of the magistrate that the appellant be released after spending three months in imprisonment. In lieu thereof I order that pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) the appellant be released upon her entering into a recognizance in the sum of $200.00 to be of good behaviour for a period of two years. A condition of the recognizance is that the appellant be under the supervision of a probation officer. The appellant is to comply with all reasonable directions of the probation officer in particular to comply with directions as to attendance for psychiatric and psychological treatment and counselling.

23 In forming this view I have considered the circumstances of the matter. The matters personal to the defendant of particular weight are her good record, age, her ongoing mental illness, and the fact of full restitution.