Chia v The Queen
[2018] WASCA 103
•29 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHIA -v- THE QUEEN [2018] WASCA 103
CORAM: BUSS P
MAZZA JA
HEARD: 8 MARCH 2018
DELIVERED : 29 JUNE 2018
FILE NO/S: CACR 240 of 2017
BETWEEN: PHILIP CHIA
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 2251 of 2016
Catchwords:
Criminal law - Leave to appeal against sentence - Appellant convicted on plea of guilty of theft - Mental impairment - Manifest excess - Turns on own facts
Legislation:
Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 16A(2)(c), s 16BA, s 17A(1)
Criminal Code (Cth), s 131.1(1), s 144.1(1), s 145(1)
Mental Health Act 2014 (WA), s 6
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in judgment(s):
Cavill v The Queen [2014] WASCA 77
Coombe v The Queen [2009] WASCA 105
De Faria v The State of Western Australia [2013] WASCA 116
Godfrey v The Queen [2013] WASCA 247
Gok v The Queen [2010] WASCA 185
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
McGuiness v The Queen [2008] NSWCCA 80
R v Buggy [2006] ACTCA 20
R v Delcaro (1989) 41 A Crim R 33
R v Desborough [2010] QCA 297
R v Thomson [2009] SASC 237
Vucemillo v The State of Western Australia [2017] WASCA 37
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was charged with one count on an indictment filed in the District Court alleging that the appellant dishonestly appropriated property from a Commonwealth entity, contrary to s 131.1(1) of the Criminal Code (Cth). The charge read:
Between 15 February 2010 and 29 November 2013 at Perth in the State of Western Australia and elsewhere in Australia [the appellant] dishonestly appropriated property, namely payments of [a]ge [p]ension belonging to another, namely Centrelink (now the Department of Human Services), which is a Commonwealth entity, with the intention of permanently depriving Centrelink of that property.
The maximum penalty for the offence is 10 years' imprisonment.
On 27 October 2017, the appellant was arraigned on the charge and was convicted of it upon his plea of guilty.
Upon entering his plea of guilty, the appellant requested the District Court to take into account two further offences pursuant to s 16BA of the Crimes Act 1914 (Cth) being one count of forgery, contrary to s 144.1(1) of the Code and one count of using a forged document, contrary to s 145.1(1) of the Code. The court, having been satisfied that, in all of the circumstances of the case, it was proper to take these offences into account,[1] proceeded to sentence the appellant with respect to the indictable offence of which he had been convicted. The appellant was sentenced to 18 months' imprisonment, with an order that he be released on a recognisance in the sum of $5,000 to be of good behaviour for a period of 2 years after serving 9 months' imprisonment.[2]
[1] See s 16BA(1)(e), Crimes Act.
[2] ts 111.
The appellant, who is self‑represented, seeks leave to appeal to this court on one ground, namely, that the sentence was manifestly excessive. As set out in the appellant's case, he alleged that the sentence imposed was manifestly excessive as to type and length. As to the length of the sentence, the appellant alleges that both the head sentence and the sentence he was required to serve before being released on recognisance were manifestly excessive. Before this court, the appellant did not maintain the claim that the sentence was manifestly excessive as to type.
The facts
The appellant takes no issue with the findings of fact made by the sentencing judge. The appellant was the grandson of the late Ms Poh Choo Ong. Prior to her death on 18 January 2010, she had been granted an age pension by Centrelink which was being paid on a fortnightly basis into her ANZ account. From at least about 31 August 2009, the appellant had authority to operate this account.
Centrelink was not notified of Ms Ong's death. Ms Ong's entitlement to an age pension ceased upon her death. Unaware of her death, Centrelink made fortnightly payments of the age pension into the ANZ account until 9 May 2013. On 15 February 2010, the appellant transferred $1,347.51 from the ANZ account to his NAB account. On 26 February 2010, the appellant began a continuing series of fortnightly transfers of $671.90 from the ANZ account to his NAB account. At the time these transfers began, $671.90 was the net amount of the age pension received in the ANZ account each fortnight. Up to 14 June 2013, there were 84 transfers from the ANZ account totalling $56,439.60. Further amounts were withdrawn from the ANZ account by the appellant. Up to 29 November 2013, the appellant misappropriated $63,724.27.
On 26 August 2012, the appellant applied to Centrelink for Austudy payment and was granted the payment from that date. Austudy is means tested as to income and assets. On 31 August 2012, the appellant told a Centrelink officer that he was living from his savings and received no income from any other source.
At one point, Centrelink sent a 'life certificate' to Ms Ong for her to complete. As the name of the document suggests, the purpose of the document is to verify that the recipient of the age pension is still alive. On 2 February 2013, Centrelink received a life certificate purportedly signed by Ms Ong and witnessed by a justice of the peace on 2 January 2013. The document bore a stamped endorsement by the justice of the peace. The appellant had forged the signatures of both Ms Ong and the justice of the peace. A search of the appellant's home revealed five blank or partially completed life certificates and a justice of the peace stamp which matched that used on the document.
The appellant has made full restitution to the Commonwealth of the amount he defrauded.[3]
[3] ts 102.
The appellant's personal circumstances
The appellant was born in Singapore in 1977. He was aged between 33 and 36 years during the offending period and was 40 when he was sentenced. He had a minor and irrelevant criminal history. The sentencing judge sentenced him on the basis that he was a person of prior good character.[4]
[4] ts 109.
The appellant's parents were both medical practitioners. His father died when he was very young. Later, the appellant migrated to Australia with his mother and his grandparents.
The appellant was a good student. After leaving school, he obtained a medical engineering degree and a doctorate in biomedical science.
In 2005, his mother died after suffering a stroke. The appellant has issues of unresolved grief relating to the circumstances of her death. Prior to her death, his mother had expressed a strong desire that the appellant follow in his parents' footsteps and become a medical practitioner. After his mother's death, the appellant became, as his Honour put it, 'somewhat obsessed' by the pursuit of obtaining a medical degree.[5]
[5] ts 103.
The appellant had a close relationship with his grandmother. He claims that it was his grandmother's intention to help him pay for his medical studies.
After his mother's death, issues arose concerning the distribution of her estate. Apart from his relationship with his grandmother, the appellant became isolated from his family.
In 2012, the appellant enrolled in the faculty of medicine at the University of Notre Dame Australia in Fremantle. He did not complete his studies.
The appellant has no issues with respect to alcohol or illicit drug abuse. There was some evidence before the sentencing judge which indicated that the appellant has some ongoing physical issues, including back pain, hypertension and difficulty sleeping.
Evidence as to the appellant's mental health
Issues relating to the appellant's mental health occupied considerable attention in the sentencing proceedings. Immediately prior to the proceedings on 27 October 2017, the appellant had been admitted to the Frankland Centre, pursuant to a hospital order.[6] The sentencing judge heard oral testimony from Dr Gosia Wojnarowska, a forensic psychiatrist, to the effect that the appellant was fit to plead and did not, at that time, suffer from a major psychiatric disorder. In particular, the appellant suffered no mental illness within the definition of s 6 of the Mental Health Act 2014 (WA) and does not suffer from depression.[7] Dr Wojnarowska expressed the view that the appellant's difficulties were 'related to his personality style'.[8]
[6] ts 38 ‑ 39.
[7] ts 41.
[8] ts 39.
The appellant's counsel provided the sentencing judge with a report written by a psychiatrist, Dr Gemma Edwards‑Smith, dated 30 October 2014, which had been obtained by the Australian Health Practitioner Regulation Agency to assess the appellant's fitness to continue his medical studies at the University of Notre Dame. She reported that the appellant presented with a history of long‑term recurrent Major Depressive Disorder which, at the time of examination, was in moderate remission. However, in her view, the most significant ongoing psychiatric issue was his personality. She found that there was evidence of a Narcissistic Personality Disorder. She said she was 'very concerned' about the reliability of the history he gave.[9] Dr Edwards‑Smith stated that the severity of the appellant's personality disorder impaired his judgment and behaviour. She added that personality dysfunction is inherently egosyntonic, and that individuals with it have little insight into the effect of their behaviour on others.[10]
[9] Report, page 12.
[10] Report, page 12.
Professor of Psychiatry, Mohan Isaac, in an undated report but apparently written in 2014, found that the appellant suffered from Recurrent Major Depressive Disorder following his mother's death in 2005. He also diagnosed dependence upon analgesics and non‑steroidal anti-inflammatory drugs. Professor Isaac noted that the appellant had three involuntary psychiatric hospitalisations, the most recent being in June and July 2013. Professor Isaac observed that the appellant was, at the time of writing the report, unable to cope with 'several real life stressors' and did not have satisfactory family and social supports.[11]
[11] Report, pages 1 - 2.
From May 2013, the appellant came under the care of Dr Adam Roberts, a consultant psychiatrist at the Alma Street Centre. In a report dated 8 February 2017, Dr Roberts stated that the appellant had been admitted to the Alma Street Centre for brief admissions in May 2013, June 2015, July 2015 and September 2015 in the context of stress and depression following being investigated for the offences the subject of this appeal. Dr Roberts diagnosed the appellant as suffering from a combination of an adjustment reaction 'to his repeated difficulties' since 2013, together with depression and anxiety.[12] Dr Roberts noted a history of self‑harm when the appellant feels very stressed. Dr Roberts expressed the opinion that the appellant's 'likely longstanding anxiety and depression and vulnerable personality are at least in part responsible for his poor decisions in relation to his offending behaviour'.[13]
[12] Report, page 1.
[13] Report, page 2.
The appellant's counsel provided the sentencing judge with three letters from qualified medical practitioners, who were friends of the appellant, two of whom, in the course of providing evidence of good character, offered various medical diagnoses. By reason of the appellant's friendship with the authors of these letters, his Honour gave limited weight to the medical opinions expressed in them.
The only report prepared for the purpose of the sentencing proceedings was from Winthrop Professor of Psychiatry, Aleksandar Janca, dated 28 September 2017. In Professor Janca's opinion, the appellant suffers from an Adjustment Disorder with mixed disturbance of emotions (depression and anxiety) and conduct. Professor Janca also noted that the appellant has some traits and behaviours characteristic of Cluster B personality (antisocial, borderline, histrionic, narcissistic) although these personality traits and behaviours did not meet all of the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM‑5) required for diagnosis of a Cluster B Personality Disorder. According to Professor Janca, the appellant's offending behaviour in 2010 to 2013 preceded the onset of the Adjustment Disorder he described. However, some of the appellant's Cluster B personality traits and behaviours may have played a role in his offending and subsequent behaviour.
The sentencing remarks
His Honour acknowledged, as mitigating factors, the appellant's plea of guilty at an early stage in the proceedings, that he had made full restitution and the appellant's good antecedents.[14] While acknowledging that some of the information provided by the appellant about his history may not be entirely accurate,[15] his Honour made the findings we have already referred to about the appellant's personal circumstances.
[14] ts 102, 109.
[15] ts 102.
With respect to the appellant's mental health, his Honour accepted that it had deteriorated substantially since his arrest, and that he was taking medication for both depression and anxiety.[16]
[16] ts 104.
His Honour analysed, in some detail, the evidence which had been presented to him about the appellant's mental health. He observed that it was unsatisfactory, in some respects, that the only report which spoke of how the appellant's mental condition contributed to his offending was that of Dr Janca and that Dr Janca did not have all the material that had been available to the court.[17]
[17] ts 106.
In the end, his Honour found that the appellant suffers, to some degree, a major depressive illness, and that he was suffering from that illness at the time he was sentenced. His Honour also found that this illness was affected by ongoing stresses, and was further complicated by the appellant's personality disorder.[18]
[18] ts 108.
His Honour concluded that the appellant's mental illness was causally connected to the offence because 'to some extent' it impaired his judgment.[19] He found that the appellant's mental illness reduced 'to some extent the [appellant's] moral culpability' and had 'a bearing' on issues of general and personal deterrence.[20] However, while general and personal deterrence had less weight in the appellant's case, they remained relevant sentencing factors.[21]
[19] ts 109.
[20] ts 109.
[21] ts 110.
His Honour observed that the offence committed by the appellant was 'a serious breach', and that the offending engaged in by the appellant was 'prevalent within the community' and 'threaten[ed] the basis of the social security system which is designed to assist people'.[22]
[22] ts 109 - 110.
As to the seriousness of the offending, his Honour noted that the offending involved dishonest acts over a period of approximately 3 ½ years.[23]
[23] ts 110.
In imposing a sentence of imprisonment, his Honour had regard to the requirement in s 17A(1) of the Crimes Act that he was not permitted to pass a sentence of imprisonment, unless no other sentence was appropriate.
Appellant's submissions to this court
In his submissions to this court, the appellant emphasised the mitigating factors found by his Honour, including his plea of guilty, the making of full restitution, his favourable antecedents, and his mental health and its impact upon the offending. He pointed to a number of cases which he said indicated that the sentence imposed was manifestly excessive, namely R v Buggy;[24] McGuiness v The Queen;[25] Coombe v The Queen;[26] R v Thomson[27] and R v Desborough.[28]
[24] R v Buggy [2006] ACTCA 20.
[25] McGuiness v The Queen [2008] NSWCCA 80.
[26] Coombe v The Queen [2009] WASCA 105.
[27] R v Thomson [2009] SASC 237.
[28] R v Desborough [2010] QCA 297.
General principles
By alleging that the sentence is manifestly excessive, the appellant is contending that error is to be inferred from the sentence itself, having regard to all of the matters that are relevant to fixing that sentence.[29] In order for the proposed ground to succeed, it is necessary for the appellant to demonstrate that the sentence was unreasonable or plainly unjust.[30]
[29] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [60].
[30] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
The matters to which a court must have regard when passing sentence in respect of any person for a federal offence are listed in pt 1B of the Crimes Act. The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1). Section 16A(2) lists matters that the court must take into account in sentencing, but those matters are non‑exhaustive.
In Hili, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ) held that s 16A accommodates the application of common law sentencing principles because those principles give relevant content to the words in s 16A(1) 'of a severity appropriate in all the circumstances of the offence', and to the words in s 16A(2)(k) 'the need to ensure that the person is adequately punished for the offence'.[31] Accordingly, concepts such as general and specific deterrence and other common law sentencing principles are accommodated in s 16A, even though they are not specifically referred to.[32]
[31] Hili [25].
[32] Hili [25]; Cavill v The Queen [2014] WASCA 77 [87].
The majority in Hili also emphasised that in dealing with appeals against sentences passed on federal offenders, there is a need for consistency of decisions throughout Australia, and that such consistency is to be achieved through the work of intermediate appeal courts. The notion of consistency includes consistent interpretation on Commonwealth legislation and 'the sufficiency of sentences passed on federal offenders', unless convinced that the decision is plainly wrong.[33] Further, the range of sentences that have been imposed do not fix the boundaries within which future judges must, or even ought to, sentence.[34]
[33] Hili [57].
[34] Hili [54].
The orthodox approach to an allegation of manifest excess is to examine the sentence imposed, having regard to the maximum penalty for the relevant offence, the standards of sentencing customarily imposed with respect to that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.[35]
[35] Godfrey v The Queen [2013] WASCA 247 [36].
In [3] of these reasons we set out the maximum penalty for the offence committed by the appellant.
We have read the cases referred to by the appellant. It is unnecessary to analyse them in detail. Each has features different from the present case. When those differences are taken into account, it does not appear that the outcome in the present case is inconsistent.
The relevant sentencing principles with respect to social security offending are not in any doubt. In cases such as this one, involving sustained and deliberate fraud, immediate imprisonment is, as a matter of fact, the ordinary disposition, although each case must be decided on its own facts. The imposition of immediate imprisonment is generally necessary in order to give effect to the need to provide general deterrence.[36]
[36] De Faria v The State of Western Australia [2013] WASCA 116 [159].
In De Faria v The State of Western Australia, Buss JA reviewed numerous cases which have dealt with social security fraud, including some of those referred to by the appellant. His Honour observed that, in respect of offences against s 29D (now repealed) of the Crimes Act and s 135.1 of the Code (Cth) (which carries a maximum penalty of 5 years' imprisonment), there is no tariff for such offences because of the great variation that is possible in the circumstances of the offending and the offenders. His Honour emphasised that each case must be decided on its own facts.[37]
[37] De Faria v The State of Western Australia [60] ‑ [61].
The offence committed by the appellant was, as the sentencing judge said, serious. The appellant was aware of his grandmother's death. He was also aware that the entitlement she had to receive an age pension ceased upon her death and that he had no right to it. Nevertheless, when Centrelink made fortnightly payments of age pension into his grandmother's bank account, he repeatedly appropriated it for himself over a period of 3 ½ years. Leaving aside the transfer on 15 February 2010, from 26 February 2010 until 14 June 2013, there were 84 transfers from his late grandmother's ANZ account totalling $56,439.60. Moreover, he appropriated some of the Centrelink payments while he was receiving a social security benefit, namely Austudy. The considerable criminality evinced by his conduct was further aggravated by the false information he gave to Centrelink on 31 August 2012, to the effect that he was living from his savings and received no income from any other source. Furthermore, he forged a life certificate and sent it to Centrelink.
The relevance of mental impairment in the exercise of the sentencing discretion was discussed in Gok v The Queen.[38] The principles described are well known and do not require repetition.
[38] Gok v The Queen [2010] WASCA 185 [53] ‑ [61].
Where, as in the present case, it is demonstrated that there is a causal connection between the impairment and the commission of the offence, the extent to which the moral culpability of the offender will be lessened will depend upon the extent of the contribution of the mental impairment to the offending. Similarly, the extent to which the issue of general deterrence will be affected depends upon the extent to which the offender was afflicted by the mental impairment.[39]
[39] Vucemillo v The State of Western Australia [2017] WASCA 37 [39].
The sentencing judge accepted that the appellant suffered from a major depressive illness which was, to some extent, causative of the offending and reduced, to some extent, the weight to be given to general and specific deterrence. However, none of the expert reports were to the effect that the appellant's ability to know that what he was doing was wrong was affected. Further, while the effect of general and personal deterrence was, to some extent, moderated, they both remained relevant and significant sentencing factors.
While it must be accepted that the appellant was a person of prior good character, good character carries less weight, having regard to the extended period over which the offences were committed.[40]
[40] R v Delcaro (1989) 41 A Crim R 33, 37 ‑ 38.
Having regard to s 16A(1), the matters listed in s 16A(2) and s 17A(1) of the Crimes Act and to all relevant sentencing considerations, including the serious nature of the appellant's offending, weighed against the mitigating factors which have been identified, including the plea of guilty, the payment of restitution, the appellant's prior good character and his mental impairment, we are satisfied that the sentence imposed by the sentencing judge was not manifestly excessive. The sentence was of a severity appropriate in all the circumstances of the offence. It was not unreasonable or plainly unjust. In our opinion, the ground of appeal relied upon by the appellant has no reasonable prospect of succeeding.
The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS29 JUNE 2018
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