Carr v Regina
[2003] NSWCCA 175
•4 July 2003
CITATION: CARR v REGINA [2003] NSWCCA 175 HEARING DATE(S): 02/07/03 JUDGMENT DATE:
4 July 2003JUDGMENT OF: Mason P at 1; Dowd J at 2; Adams J at 25 DECISION: Leave granted; appeal allowed; sentence set aside; re-sentenced to 2½ years imprisonment commencing 12/12/02 expiring 11/06/05; applicant be released at the expiration of 7 months 2 weeks from 12/12/02 expiring on 25/07/03, on entering recognisance of $200 without surety, be of good behaviour for a period of 2 years from today, to appear for sentence if called for any breach within that same period. CATCHWORDS: Severity appeal - parity - justifiable sense of grievance with particular co-offender's sentence. LEGISLATION CITED: Crimes Act 1914 (Cth) CASES CITED: Lowe v R (1985) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Olbrich (1999) 199 CLR 270PARTIES :
Dawn Marie Carr (Applicant)
Crown (Respondent)FILE NUMBER(S): CCA 60139/03 COUNSEL: G Bashir (Applicant)
H Dhanji (Crown)SOLICITORS: DJ Humphreys (Applicant)
SE O'Connor (Respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/41/0047 LOWER COURT
JUDICIAL OFFICER :Graham DCJ
60139/03
Friday 4 July 2003MASON P
DOWD J
ADAMS J
1 MASON P: I agree with Dowd J.
2 DOWD J: Consequent upon the entry of a plea of guilty in the Queanbeyan District Court to a single offence of defrauding the Commonwealth from 1 January 1996 to 30 April 2000 the applicant was sentenced on 12 December 2002 by Graham DCJ, at the same time as three co-offenders, to two and a half years’ imprisonment dating from 12 December 2002 with a non-parole period expiring on 11 December 2003 whereupon the applicant was to be released to a good behaviour bond for two and a half years. A reparation order of $8,230.50 was made by consent in favour of the Health Insurance Commission.
3 In the fraud scheme there were seven co-offenders, the principal of which scheme was Cheryl Wilkin. The scheme was to manufacture false claims and accounts in respect of the doctor’s practice where Wilkin worked as a receptionist. Wilkin had produced false accounts for herself and her family, signing all the false claim forms. The extended scheme raised the sum of $176,282.55 involving also Wilkin’s sister, Vicki Watson. Other participants in the scheme were: the applicant; Wilkin’s daughter, Kelly Diamond; Ann Morris; Tanya Pittman and Deborah Edwards, daughters of the applicant; and Kim Furner, a friend of Pittman and Edwards.
4 The penalty for the offence is ten years imprisonment. The learned sentencing judge held that the persistent abuse of the Medicare system required the strongest condemnation and justified significant deterrent penalties.
5 The applicant was the only offender, other than Wilkin, to receive a full time sentence of imprisonment. Diamond was sentenced to one year’s periodic detention and all others received suspended sentences. The amount that Diamond defrauded was $28,154.50.
6 An agreed statement of facts was admitted in the proceedings, but an unresolved issue in that statement was as to whether the applicant’s liability extended beyond the amount of her reparation order as the statement referred to the fact that the total value of the false claims of the applicant, and those introduced by her was a total of $101,929.20.
7 A number of matters regarding her co-offenders were disposed of in the Australian Capital Territory, none of which involved reparation on the basis of hardship other than Wilkin who paid a proportion of the amount for which she was responsible, $20,000 under the scheme subject of the charge before the court, and $35,000 for another offence. The only other reparation paid by any offender was Morris of $500.
8 The applicant sought leave to appeal. One of the grounds of appeal was abandoned at the hearing, leaving the grounds that her sentence failed to properly take into account the principle of parity and that the applicant had a justifiable sense of grievance compared with her co-offenders.
9 Additionally, the applicant submitted that the learned sentencing judge clearly had regard to the fact of the sum of $101,000 odd in false claims to the Health Insurance Commission, noting in his remarks on sentence at page 15:
- “The fact that she herself obtained only $8,000 is not in terms of the assessment of the objective seriousness of the offence the full story.”
10 It was further submitted that the learned sentencing judge failed to find proven facts relating to the larger sum if it was to rely on those facts to enlarge the sentence, R v Olbrich (1999) 199 CLR 270.
11 The applicant also contended that his Honour erred in determining that the applicable case did not warrant the suspension of her sentence.
12 In relation to the question of the applicant’s justification for a sense of grievance, his Honour acknowledged in his remarks on sentence, that the question of suspension could not be completely overlooked. The applicant, however, submitted that the question of the co-offenders suspension of sentence was relevant to the question of parity.
13 It is clear that his Honour, in sentencing, correctly determined that Wilkin was the architect and centre of the operation (and sentenced her accordingly) and also correctly determined that the applicant had a higher level of involvement than other co-offenders.
14 The High Court in Lowe v R (1985) 154 CLR 606, as applied in Postiglione v R (1997) 189 CLR 295, established the basis on which a sentence, which offends the principle of parity, should be reduced notwithstanding that a sentence might be otherwise appropriate.
15 The applicant was introduced to the scheme, as were others, she not having a relationship with one of the doctors in the practice, and was less involved than Wilkin and Watson who both had the aggravating factors of breach of trust when in an employment situation. Wilkin also obtained a benefit of contributions from the other offenders.
16 There were a wide variety of circumstances between all offenders, including the length of involvement in the scheme, previous records, subjective circumstances and assistance to authorities.
17 It is the case, however, of Diamond on which the applicant principally relies in her appeal on parity. Diamond, at the time of the offence had lengthy antecedents and a history of non-compliance with orders in re-offending. Diamond had put pressure to bear on the applicant to stay in the scheme.
18 Diamond pocketed three and one half times as much as the applicant in the fraud and made no offer of reparation, nor did so. The applicant had a strong subjective case as compared with Diamond and had made an offer of reparation of the full amount she received.
19 The applicant had serious health difficulties, needing knee reconstruction and suffering from arthritis and diabetes, resulting in a more difficult time in custody.
20 In my view, whatever the sum for which those introduced by the applicant and she defrauded the Health Insurance Commission, the applicant’s involvement was of a sufficiently serious nature as to warrant a sentence of the nature of that imposed including a period of full time custody.
21 The ground, however, of the applicant’s justified sense of grievance based on parity in relation to Diamond particularly has been made out. With respect to the other co-offenders’ sentences, there is also some basis for such justifiable sense of grievance. The distinguishing factor of the agreement for full reparation of the amount received as against all others and being the only person other than Wilkin to have had imposed a sentence of full time custody establishes error as a breach of the principle in Lowe v R.
22 The court received evidence of the difficult circumstances, particularly involving the death of a prisoner in the same unit as the applicant. This is taken into account. The non-parole period is reduced to 25 percent of the head sentence.
23 In considering the orders that I propose hereunder I have taken into account the factors required by the Crimes Act 1914 (Cth).
24 The orders that I would propose are as follows:
i. Leave to appeal granted.
ii. Appeal allowed.
iii. Sentence of Graham DCJ set aside.
iv. The applicant is re-sentenced to two and a half years imprisonment commencing 12 December 2002 and expiring 11 June 2005.
v. That the applicant be released at the expiration of seven months and two weeks from 12 December 2002, expiring on 25 July 2003 upon her entering into a recognisance pursuant to the Crimes Act 1914 (Cth) in the sum of $200 without surety to be of good behaviour for a period of 2 years from today and to appear for sentence if called upon to do so at any time in respect of any breach within the same period.
25 ADAMS J: I agree.
Last Modified: 07/21/2003
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