Cairns v Stringer
[2015] TASSC 8
•11 March 2015
[2015] TASSC 8
COURT: SUPREME COURT OF TASMANIA
CITATION: Cairns v Stringer [2015] TASSC 8
PARTIES: CAIRNS, Marisa
v
STRINGER, Sharon Lesley
FILE NO: LCA 744/2014
DELIVERED ON: 11 March 2015
DELIVERED AT: Hobart
HEARING DATE: 27 February 2015
JUDGMENT OF: Blow CJ
CATCHWORDS:
Social Welfare – Offences – False statements and fraud – Penalty – Obtaining of $44,979 over 5 years 7 months – Sentence of imprisonment with order for immediate release on recognizance and community service order – Whether manifestly inadequate – Mitigatory effect of depression and impact on family.
Aust Dig Social Welfare [1116]
REPRESENTATION:
Counsel:
Applicant: I M Arendt
Respondent: R Foon
Solicitors:
Applicant: Director of Public Prosecutions (Commonwealth)
Respondent: Douglas & Collins
Judgment Number: [2015] TASSC 8
Number of paragraphs: 20
Serial No 8/2015
File No LCA 744/2014
MARISA CAIRNS v SHARON LESLEY STRINGER
REASONS FOR JUDGMENT BLOW CJ
11 March 2015
This is a motion for the review of sentencing orders made by a magistrate, Mr T Hill, in a social security fraud case. The respondent, Sharon Stringer, obtained social security benefits to which she was not entitled by pretending that she was a single mother when, in fact, she was living as a member of a couple. She was charged with two counts of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth). She defended the case, but the learned magistrate found her guilty and convicted her on both charges. Each charge related to an intentional false representation in a "Customer Declaration Form" – the first in September 2004 and the second in September 2006. As a result of those representations the respondent received $44,979.72 to which she was not entitled over a period of 5 years 7 months. On the first charge, the learned magistrate ordered her to perform 140 hours' community service. On the second, he sentenced her to five months' imprisonment, but made a recognizance release order permitting her to be released forthwith. The applicant, an officer of the Department of Human Services who was the complainant in the court below, contends that the sentences were manifestly inadequate, and that the learned magistrate made two specific errors in the sentencing process.
Ground 1 – Reasons for the decision to release the respondent forthwith
The first of the applicant's grounds of review reads as follows:
"1The Learned Magistrate erred in law in making the order to release the Respondent forthwith by taking into account only those matters personal to the Respondent."
The legislative provisions that applied to the sentencing of the respondent are to be found in ss 16A, 19AC, and 20(1)(b) of the Crimes Act 1914 (Cth). They can be summarised as follows:
· Section 16A(1) requires a sentencing court to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence".
· Section 16A(2) lists some 15 matters that the court must take into account, if they are relevant and known to the court, in addition to any other matters. The listed matters include the nature and circumstances of the offence; the need to ensure that the defendant is adequately punished for the offence; the character, antecedents, age, means and physical or mental condition of the defendant; and the probable effect that any sentence or order would have on any of the defendant's family or dependents: s 16A(2)(a), (k), (m), and (p) respectively.
· The court may, if it thinks fit, sentence the defendant to imprisonment but direct, by order, that the defendant be released upon giving security by recognizance or otherwise, either forthwith or after serving a specified period of imprisonment: s 20(1)(b). Any such recognizance must include a condition requiring the defendant to be of good behaviour for such period, not exceeding five years, as the court specifies in the order: s 20(1)(a)(i).
· Subject to some exceptions, the court must make a recognizance release order if it imposes a federal sentence or federal sentences that do not exceed three years: s 19AC(1).
· The sentencing court is not required to make a recognizance release order when it imposes a sentence or sentences not exceeding six months: s 19AC(3).
· Where a court would otherwise be required to make a recognizance release order, it may decline to do so if, having regard to the nature and circumstances of the offence or offences and to the antecedents of the defendant, the court is satisfied that such an order is not appropriate: s 19AC(4).
The relevant sentencing process was summarised by Buss JA, with whom McLure P and Mazza JA agreed, in De Hollander v The Queen [2012] WASCA 127 at [86] as follows:
"… the question whether to release a federal offender forthwith under s 20(1)(b) of the Crimes Act is part of a process which may involve three steps. The steps are as follows. First, all relevant sentencing factors (notably, those referred to in s 16A) must be taken into account in deciding whether to impose a term of imprisonment and, if so, the length of the term. Secondly, it may be necessary for the court to consider whether, pursuant to s 19AC(4), it should decline to make a recognizance release order in respect of the offender. Ordinarily, s 19AC(1) requires a court to make a recognizance release order where a person is convicted of a federal offence and the court imposes a term of imprisonment not exceeding 3 years, but that provision is subject to, relevantly, s 19AC(4). Thirdly, the court must take into account, in deciding whether to release the offender forthwith under s 20(1)(b), the same factors as those applicable to the imposition and fixing of the term of imprisonment (notably, those referred to in s 16A). However, the weight to be given to these factors, and the manner in which they are relevant, will differ as a result of the different purposes underlying each function."
In his sentencing comments in this case, the learned magistrate referred to the following matters:
· The fact that the respondent obtained payments of benefits when she was not entitled to receive them because she was living as a member of a couple.
· The duration of the offending.
· The total amount that the respondent received.
· The respondent's personal circumstances, including the fact that she had two young children and the fact that she suffered from a depressive condition.
· The fact that the respondent's partner was at that time unable to work or to provide support physically or financially.
· The fact that the respondent was supporting and caring for her elderly mother.
· The fact that the respondent was a first offender.
· The fact that the respondent had denied both charges and shown no remorse. (He made an observation to the effect that those matters were not aggravating factors, but that there was nothing to be taken into account by way of admissions or co-operation.)
· The need for deterrent sentences.
· "The matters referred to in s 16A of the Crimes Act".
· The respondent's financial position.
· The fact that she did not use the money she received to fund a lavish lifestyle.
· The fact that the respondent was making repayments, but that, at the then rate of repayment, it would take 86 years for her to repay the full amount.
· The fact that the prospects of full recovery were very remote.
· Delays between the cancellation of the respondent's benefits in June 2010 and the commencement of a prosecution in May 2013, and the fact that the respondent suffered stress and anxiety as a result.
The learned magistrate then said the following:
"A sentence of imprisonment as a head sentence is clearly appropriate. It is the only sentence which would adequately reflect the gravity of your offending. It is a question of whether you should actually serve any of that time.
I've given this matter a lot of thought and I have decided that a wholly suspended sentence of imprisonment [sic] coupled with a significant amount of community service would satisfy those sentencing factors which I have referred to. I have mentioned your personal and family situation and this is the primary reason I have come to this conclusion together with the element of delay which in my view is excessive and not adequately explained."
The applicant contends that the final sentence in the passage that I have just quoted indicates that, when deciding that the recognizance release order was to permit the respondent to be released forthwith, rather than after serving some time in prison, the learned magistrate took into account only mitigating factors, and ignored the factors that weighed against the taking of such a course. Taking into account only mitigating factors at that stage would no doubt have amounted to an error of law. As Buss JA said in De Hollander (above) at [86], the sentencing court at that stage must take into account, "the same factors as those applicable to the imposition and fixing of the term of imprisonment (notably, those referred to in s 16A)". But I do not think the learned magistrate's words indicate that he made any such error.
Reading his comments as a whole, it is clear that he took into account all the relevant matters. He said that he had given the matter a lot of thought before deciding on what he called "a wholly suspended sentence of imprisonment". No doubt he meant by that to refer to a sentence of imprisonment that the respondent would not have to serve if she was of good behaviour for a specified period. Immediately before his comments about her "personal and family situation", the learned magistrate mentioned what he called "those sentencing factors which I have referred to". Those words must have referred to the factors that weighed in favour of incarceration rather than immediate release. There is nothing in the learned magistrate's comments to indicate that he failed to take into account any relevant matter when determining when the respondent should be released. Ground 1 must therefore fail.
Ground 2 – Delay
This ground reads as follows:
"2 The Learned Magistrate erred in law by misdirecting himself:
(a) that unexplained delay was a mitigating factor; and/or
(b) as to the appropriate test to be applied in relation to delay."
The comments made by the learned magistrate about delay at the time of sentencing were as follows:
"The question of delay is also relevant here, in my view. Both Mr Foon and Mrs Wilson referred to it. In my opinion it was significant in this case. Your parenting payment single benefits were cancelled in June 2010. The complaint was not taken out until May 2013, almost three years later. I accept that part of that three-year period can be explained by the time taken to investigate the matter and prepare the brief but three years seems particularly excessive to me.
I accept that you would have suffered stress and anxiety because of that. I take all these matters into account."
The sequence of events relating to the investigation and prosecution in this case was as follows:
· On 18 May 2010 the respondent's home was searched pursuant to a search warrant.
· On 25 June 2010 her social security benefits were cancelled.
· On 5 October 2010 the respondent sought a review of that decision. The matter was referred to an authorised review officer.
· On 15 November 2010 the authorised review officer affirmed the decision.
· On 6 December 2010 the respondent appealed to the Social Security Appeals Tribunal.
· On 29 April 2011 the respondent failed to attend a hearing of her appeal, which was treated as withdrawn. Until that time, in accordance with an established policy, the authorities had done nothing about preparing for a prosecution because there was an appeal pending.
· About six months later, on 3 November 2011, steps were taken to obtain statements from witnesses and prepare a brief of evidence.
· On 1 June 2012, more than 13 months after the conclusion of the appeal proceedings, a brief of evidence was referred to the office of the Commonwealth Director of Public Prosecutions ("the DPP").
· On 19 December 2012, more than six months after the brief was received, a request was made for Centrelink to provide further information.
· On 29 January 2013 and 28 March 2013 Centrelink provided further information to the office of the DPP.
· On 22 May 2013 the applicant swore the complaint by which the prosecution was commenced. It was filed the following day.
· On 9 July 2013 the respondent made her first appearance in relation to that complaint in the Magistrates Court. It is not clear when she was served with the complaint.
In my experience investigations and prosecutions in cases like this often move as slowly as they did in this case. It certainly does not follow that such delays are reasonable. In this case the interval between the conclusion of the appeal proceedings and the swearing of the complaint was over two years. There is no reason why all the steps that were taken during that period could not have been taken within a period of six months or less.
When submissions were made to the learned magistrate in relation to sentencing, he was provided with a certificate from a medical practitioner stating that the respondent had depression and was being treated with medication and counselling by psychologists. He was also provided with a letter from her treating psychologist, who outlined her symptoms and expressed the opinion that the respondent was "in a fragile emotional state due to the charges being brought against her by Centrelink and the protracted court hearing process". The respondent's counsel told the learned magistrate that she had had a long and difficult time since the police search, addressed him as to the delays, and told him that she was suffering from depression. It was reasonable for the learned magistrate to infer that the respondent had suffered stress and anxiety from the time her offending was detected, and not just from the time when proceedings were instituted.
It cannot be said that there was any unreasonable delay on the part of the applicant after the prosecution in this case was commenced. Delay before the bringing of charges is not, of itself, a mitigating factor, but it will be if it results in unfairness to the offender: Prehn v The Queen [2003] TASSC 55 at [21]; Williams v Tasmania [2014] TASCCA 2 at [17]. The respondent has two children. At the time of the police search the younger one was 10 months old, and the older one was aged 3 years 8 months. Since then she has had very good reason to worry about being sent to prison. It must follow that the psychological impact of the delay prior to the bringing of charges was something that the learned magistrate was entitled to take into account as a mitigating factor. Ground 2 must therefore fail.
However I do not regard the delay in this case as a powerful mitigating factor. In R v Todd [1982] 2 NSWLR 517, in which the sentencing of the appellant was substantially delayed while he served a sentence interstate, Street CJ, with whom Moffitt P and Nagle CJ at CL agreed, said at 519-520:
"… where there has been a lengthy postponement … fairness to the prisoner requires weight to be given … to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be an undue degree of leniency being extended to the prisoner."
This was not such an extreme case. The delay in this case and its impact on the respondent had to be taken into account, but not given a dominant role. There is nothing in the learned magistrate's sentencing comments to suggest that he gave undue weight to the delay and its impact on the respondent.
Ground 3 – Manifestly inadequate sentences?
In dealing with ground 1 I have listed the factors that the learned magistrate took into account in deciding what sentences to impose. In [6] above I have quoted his reasons for not sending the respondent to prison. He said that the respondent's "personal and family situation" was "the primary reason" that he decided upon the course that he took. The information before him as to the respondent's personal circumstances can be summarised as follows:
· Her younger child was 4 years old at the time of sentence, and had just started kindergarten. The other child was in grade 2.
· She had not spent a night away from either of the children since they were born.
· She was suffering from depression, for which she was receiving treatment from a doctor and taking medication. She was also receiving assistance from a counsellor.
· The respondent's partner had suffered an injury, and was unable to walk without crutches or to drive. There was a possibility that he would have to undergo surgery. He was 10 days away from using up all his sick leave entitlements, after which he would have to take leave without pay, and would not be able to support the children financially.
· The respondent was responsible for the care of her 84 year old mother, who was unable to drive. She had mobility problems. She was suffering from emphysema. She wore a "medic alert bracelet" which she could use to contact the respondent.
· There was no-one else who could provide support for the respondent's children, partner and mother.
It is true that the respondent dishonestly obtained almost $45,000 over a period of about 5½ years. In the absence of compelling mitigating circumstances, an order for the immediate release of the respondent would have been inappropriate. Some common mitigating factors were absent – the respondent had not pleaded guilty and had shown no remorse. However, because of the compelling information as to the respondent's depression and as to the likely impact of imprisonment upon her children, partner and mother, I consider that it was reasonably open to the learned magistrate not to require her to serve any part of her sentence of imprisonment before she was released.
The learned magistrate ordered the respondent to perform only 140 hours' community service. I think she got off lightly in that respect. The maximum that could have been ordered was 240 hours: Sentencing Act 1997, s 31(2); Crimes Act, s 20AB(3). An order requiring the respondent to perform 240 hours' community service or thereabouts would not have been inappropriate. However I am not satisfied that the penalties imposed by the learned magistrate, separately or in the aggregate, were so lenient that, in all the circumstances, any or all of them could properly be regarded as manifestly inadequate.
Conclusion
For these reasons the motion to review is dismissed.
0
3
0