Soliman v The Queen [2021] VSCA 8

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 The applicant pleaded guilty to one charge of obtaining financial advantage by deception from a Commonwealth entity ('Services Australia').[1] Over the period March 2013-November 2017, the applicant was in receipt of Newstart allowance. During that period, she misstated her income on 123 occasions: on 51 occasions she made a false declaration of nil income and, on 72 occasions, a false under-declaration of income.

2 The maximum penalty for the offence is 10 years' imprisonment. The applicant was sentenced to 20 months' imprisonment and the judge ordered that she be released on a recognisance release order in the sum of $1000 after having served 5 months' imprisonment. She now seeks leave to appeal on the ground that the sentence is manifestly excessive.

3 For reasons which follow, we would refuse leave to appeal. Given the seriousness of the offending, and the applicant's persistence in her deceptions after being questioned about the income declarations, the sentence was well within the range reasonably open to the judge. The contrary is not reasonably arguable.

4 During the offending period, the applicant received $67,853 in benefits when she was only entitled to receive $2,555. She was in continuous employment throughout the period of four and a half years. During that period, she earned $236,663, of which she declared only $22,126.

5 The offending was not voluntarily disclosed but was detected following an anonymous tipoff. In August 2016, following the tipoff, Services Australia contacted the applicant by telephone to discuss the allegation of understatement of income. During this conversation, the applicant said that her job provider had brought to her attention that she had not been declaring all of her earnings to Services Australia and had provided her with an overview on how to report her earnings correctly. She said that she now understood how to do so and was encouraged to contact Services Australia should she require assistance in the future.

6 Soon after this conversation, the applicant resumed her offending. She misstated her income on a further 30 occasions in the period to November 2017.

7 Subsequently, the Commonwealth sought repayment of the outstanding amounts. The applicant sought to negotiate a payment plan but, once it was ascertained that the applicant had approximately $130,000 in a bank account, full repayment was insisted on.

8 The judge concluded that this was 'a serious case of defrauding the Commonwealth'. His Honour referred to the duration of the offending and its continuation after the matter was brought to the applicant's attention. His Honour described the offending as 'calculated' and involving 'an element of greed'. These findings are not challenged.

Considerations of general deterrence call for a sentence that sends a signal to all members of the community, in particular those in receipt of Government benefits, that the burden of fraud falls on all members of the community and those defrauding the system can expect significant punishment. This is notwithstanding that there may be significant matters of personal misfortune.[2]

10 His Honour gave careful consideration to the expert report of a consultant psychologist, who diagnosed major depressive disorder, post-traumatic stress disorder and alcohol use disorder. Although the defence disavowed reliance on the principles enunciated in Verdins,[3] his Honour noted the psychologist's conclusion that there was a nexus between the offending and the psychological stress experienced by the applicant as a result of a long-running and bitter property dispute with her former husband.

11 His Honour considered that the applicant's prospects of rehabilitation were good. He also took into account the delay between interview and sentence, and the impact of the pandemic on the experience of imprisonment.

12 The prosecution submission on the plea, and again in this Court, was that:

An actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate fraud against the social welfare system. This is because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose of imposing sentence in such cases, namely general deterrence.

13 His Honour concluded that, notwithstanding the matters relied on in mitigation, the offending called for a sentence of imprisonment. He continued:

I have considered whether it is appropriate to order that upon the imposition of a sentence of imprisonment you be released after serving part of that sentence by way of a recognisance with or without conditions. I formed the view that it is appropriate to release you after serving a period of imprisonment.[4]

As noted earlier, the applicant was ordered to be released after five months on entering a recognisance in the sum of $1000.

14 At the outset of his submissions, senior counsel for the applicant made clear the limits of the manifest excess argument. There was to be no challenge to the judge's conclusion that a sentence of imprisonment was warranted nor to his decision that a period of actual custody was required. The manifest excess submission would, instead, be directed at the head sentence of 20 months and at the fixing of five months as the time to be served before the applicant would be eligible for release on recognisance.

15 In the event, the submission concentrated almost entirely on the period of actual custody. Counsel drew attention to the decision of the Queensland Court of Appeal in R v Newton,[5] where Chesterman JA (in dissent in the result) said that the cases discussed in the principal judgment of Atkinson J:

establish that the range of penalty, which is quite wide, is between two and two and a half years' imprisonment, with between three and nine months to be spent in actual custody.[6]

The submission for the present applicant was that the sentence imposed on her should have been at the low end of that range, that is, the judge should have required that no more than three months be served in actual custody before the applicant was eligible for release on recognisance.

16 There are several difficulties with this submission. The first is that Chesterman JA was using the term 'range' in its conventional sense, that is, to refer to the range reasonably open to the sentencing judge in the circumstances of that particular case. A range thus identified has no application beyond the case at hand. Earlier in his reasons, having pointed out that a precise comparison between cases was impossible, his Honour had said:

What is possible is an examination of cases to discern a range within which the sentencing discretion is to be exercised.[7]

17 Secondly, the specific terms in which the submission was expressed - that the period of actual custody in this case should have been three months rather than five - reveal its incurable flaw. The decision as to how much of a term of imprisonment should actually be served is quintessentially discretionary. As Atkinson J said in Newton, in a passage to which counsel drew our attention:

a sentencing judge has a very wide discretion as to the appropriate period of imprisonment, if any, which must be served before an offender is released on recognisance.[8]

18 After expressing agreement with that statement, Chesterman JA said:

The breadth of the discretion, of course, increases an applicant's difficulty in persuading a court that a sentence is manifestly excessive beyond the permissible range of sentence. An applicant who seeks a reduction of sentence must demonstrate not that another sentence might have been appropriate, or even more appropriate than the one imposed. An application for leave to appeal against sentence cannot succeed unless the applicant demonstrates that the sentence actually imposed was not appropriate at all: that it was manifestly excessive because it was beyond the permissible range of discretionary judgment.[9]

19 His Honour's explanation of the manifest excess ground is, of course, entirely consistent with the well-established principles laid down in the decisions of this Court.[10] In the present case, it is simply not tenable to argue that the decision to require the applicant to serve (only) five months of a 20 month sentence was 'beyond the permissible range of discretionary judgment'.

20 As senior counsel for the applicant properly conceded, the judge took into account all of the matters relied on in mitigation of sentence. The complaint was, simply, that they had not been given enough weight. But, as this Court has repeatedly made clear, complaints about weight can only be assessed by looking at the sentence ultimately arrived at.[11]

21 In our view, counsel for the respondent was correct to submit that the sentence arrived at - requiring only five months of actual custody - could only be explained on the basis that the judge gave very considerable weight to the matters relied on in mitigation. Had that not been the case, a longer period of custody would have been called for, given the objective gravity of the offending.

[2] DPP v Soliman [2020] VCC 1898, [38] ('Reasons').

[3] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[5] (2010) 199 A Crim R 288; [2010] QCA 101.

[9] Ibid [3] (Chesterman JA) (emphasis in original).

[10] See, for example, Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[11] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5]; [2009] VSCA 220 (Maxwell P, Redlich JA and Robson AJA); Smith v The Queen [2020] VSCA 159, [12] (Maxwell P, Kyrou and Weinberg JJA); Sanyasi v The Queen [2019] VSCA 227, [63] (Maxwell P, Priest and Beach JJA).