De Faria v The State of Western Australia
[2013] WASCA 116
•3 MAY 2013
DE FARIA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 116 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:232/2012 | 5 FEBRUARY 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 3/05/13 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | CACR 232 of 2012 Leave to appeal granted on ground 2 Appeal dismissed CACR 236 of 2012 Application for leave to rely on additional evidence dismissed Leave to appeal refused on ground 2 Leave to appeal granted on ground 3 Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | SANDRA MARIA GONCALVES DE FARIA THE STATE OF WESTERN AUSTRALIA MARIA MANUELA DE FARIA |
Catchwords: | Criminal law Appeal against sentence Defrauding the Commonwealth Dishonestly causing a loss to the Commonwealth Centrelink benefits Additional evidence on appeal Absence permits for prisoners Acts of mercy by appellate court |
Legislation: | Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 19AC(4), s 19AF(1), s 20(1), s 29D (repealed) Criminal Appeals Act 2004 (WA), s 31(4)(a), s 40(1)(e) Criminal Code (Cth), s 11.2(1), s 135.1(5), s 135.1(7) Prisons Act 1981 (WA), s 83 Prisons Regulations 1982 (WA), reg 54D, reg 54F, pt V div 9 |
Case References: | Barry v The State of Western Australia [2012] WASCA 175 Bick v The Queen [2006] NSWCCA 408 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Coombe v The Queen [2009] WASCA 105 De Hollander v The Queen [2012] WASCA 127 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Director of Public Prosecutions (Cth) v Parfrey [2010] VSCA 212 Evans v The Queen [2006] NSWCCA 349 Grenfell v The Queen [2009] NSWCCA 162; (2009) 196 A Crim R 145 Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Ho v The State of Western Australia [2011] WASCA 108 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kovacevic v Mills [2000] SASC 106; (2000) 111 A Crim R 131 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 McGuiness v The Queen [2008] NSWCCA 80 Morris v The State of Western Australia [2011] WASCA 47 Nicolaides v The State of Western Australia [2012] WASCA 199 Norton v The Queen [2003] WASCA 86 Nunn v Kinnon (1991) 4 WAR 459 Ord v The Queen [2008] NSWCCA 162; (2008) 186 A Crim R 475 Payne v The Queen [2010] WASCA 177 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pedersen v The State of Western Australia [2010] WASCA 175 Pennington v McLean [2008] TASSC 4 Petrelis v The State of Western Australia [2012] WASCA 235 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Desborough [2010] QCA 297 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 R v Lovel [2007] QCA 281 R v Newton [2010] QCA 101 R v Rossi (1988) 4 WAR 463 R v Schultz [2008] NSWCCA 199 R v Thomson [2009] SASC 237 R v Wood [2005] NSWCCA 233 Ralph v Nawrojee [2003] WASCA 5 Roffey v The State of Western Australia [2007] WASCA 246 Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 The State of Western Australia v Hyder [2011] WASCA 256 The State of Western Australia v Munda [2012] WASCA 164 Thomas v The Queen [2006] NSWCCA 313 Vagh v The State of Western Australia [2007] WASCA 17 Wheeler v The Queen [No 2] [2010] WASCA 105 Whyte v Director of Public Prosecutions (Cth) [2008] SASC 310 Wilson v The State of Western Australia [2010] WASCA 82 Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 58 Yarak v The Queen [2008] NSWCCA 298 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DE FARIA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 116 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 743 of 2012
Catchwords:
Criminal law - Appeal against sentence - Defrauding the Commonwealth - Dishonestly causing a loss to the Commonwealth - Centrelink benefits - Additional evidence on appeal - Absence permits for prisoners - Acts of mercy by appellate court
Legislation:
Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 19AC(4), s 19AF(1), s 20(1), s 29D (repealed)
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 40(1)(e)
Criminal Code (Cth), s 11.2(1), s 135.1(5), s 135.1(7)
Prisons Act 1981 (WA), s 83
Prisons Regulations 1982 (WA), reg 54D, reg 54F, pt V div 9
Result:
CACR 232 of 2012
Leave to appeal granted on ground 2
Appeal dismissed
CACR 236 of 2012
Application for leave to rely on additional evidence dismissed
Leave to appeal refused on ground 2
Leave to appeal granted on ground 3
Appeal dismissed
(Page 3)
Category: D
Representation:
CACR 232 of 2012
Counsel:
Appellant : Mr A L Troy
Respondent : Mr M T Ritter SC
Solicitors:
Appellant : Putt Legal
Respondent : Director of Public Prosecutions (Cth)
CACR 236 of 2012
Counsel:
Appellant : Ms B J Lonsdale
Respondent : Mr M T Ritter SC
Solicitors:
Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Coombe v The Queen [2009] WASCA 105
De Hollander v The Queen [2012] WASCA 127
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Parfrey [2010] VSCA 212
Evans v The Queen [2006] NSWCCA 349
Grenfell v The Queen [2009] NSWCCA 162; (2009) 196 A Crim R 145
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
(Page 4)
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ho v The State of Western Australia [2011] WASCA 108
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kovacevic v Mills [2000] SASC 106; (2000) 111 A Crim R 131
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McGuiness v The Queen [2008] NSWCCA 80
Morris v The State of Western Australia [2011] WASCA 47
Nicolaides v The State of Western Australia [2012] WASCA 199
Norton v The Queen [2003] WASCA 86
Nunn v Kinnon (1991) 4 WAR 459
Ord v The Queen [2008] NSWCCA 162; (2008) 186 A Crim R 475
Payne v The Queen [2010] WASCA 177
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pedersen v The State of Western Australia [2010] WASCA 175
Pennington v McLean [2008] TASSC 4
Petrelis v The State of Western Australia [2012] WASCA 235
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Desborough [2010] QCA 297
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Lovel [2007] QCA 281
R v Newton [2010] QCA 101
R v Rossi (1988) 4 WAR 463
R v Schultz [2008] NSWCCA 199
R v Thomson [2009] SASC 237
R v Wood [2005] NSWCCA 233
Ralph v Nawrojee [2003] WASCA 5
Roffey v The State of Western Australia [2007] WASCA 246
Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Munda [2012] WASCA 164
Thomas v The Queen [2006] NSWCCA 313
Vagh v The State of Western Australia [2007] WASCA 17
Wheeler v The Queen [No 2] [2010] WASCA 105
Whyte v Director of Public Prosecutions (Cth) [2008] SASC 310
Wilson v The State of Western Australia [2010] WASCA 82
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 58
Yarak v The Queen [2008] NSWCCA 298
(Page 5)
1 McLURE P: I have had the advantage of reading the reasons for judgment of Buss and Mazza JJA. Both agree that, on the information before the sentencing judge, he did not make an express or implied material error of fact or law in sentencing the appellants. I agree.
2 The central question for me is whether the letter dated 26 November 2012 from Dr Oldham concerning the condition of Mr J De Faria (the husband and father of Maria and Sandra De Faria respectively) is materially different in substance from the information before the sentencing judge. If it is not, this court lacks the power to intervene in the exercise of the sentencing discretion. I am not persuaded that the additional evidence satisfies that test. There being no relevant error or miscarriage of justice, this court cannot uphold the appeals. The restraints upon an appellate court are soundly based in policy. Further, consistency in the application of sentencing principles is a cornerstone of the criminal justice system.
3 Although not relevant to whether this court has the power to intervene, it is important to recognise that the Chief Executive Officer of the Department of Corrective Services can permit a prisoner to be absent from a prison on compassionate or humanitarian grounds (Prisons Act 1981 (WA), s 83, Prisons Regulations 1982 (WA), pt V div 9).
4 Accordingly, I agree with the orders proposed by Buss JA.
5 BUSS JA: These are appeals against sentence.
6 The appellant in CACR 232 of 2012 (Sandra De Faria) and the appellant in CACR 236 of 2012 (Maria De Faria) were convicted, on their fast-track pleas of guilty, of offences involving dishonesty in connection with Centrelink benefits paid to Maria De Faria.
7 Maria De Faria was convicted on two counts in an indictment, namely:
(a) between 3 September 1997 and 23 May 2001, she defrauded Centrelink in that she obtained payments of pensioner partner allowance to which she was not entitled because she was in receipt of income from employment, contrary to s 29D (now repealed) of the Crimes Act 1914 (Cth) (count 1); and
(b) between 24 May 2001 and 18 March 2009, she dishonestly caused a loss to Centrelink in that she obtained payments of pensioner partner allowance and aged pension to which she was not entitled
(Page 6)
- because she was in receipt of income from employment, contrary to s 135.1(5) of the Criminal Code (Cth) (the Code) (count 2).
8 Sandra De Faria was also convicted on two counts in the same indictment, namely:
(a) between 10 December 2003 and 18 March 2009, she committed an offence contrary to s 135.1(5) of the Code of dishonestly causing a loss to Centrelink in that, by virtue of s 11.2(1) of the Code, she aided, abetted, counselled or procured Maria De Faria in obtaining payments of pensioner partner allowance and aged pension to which she was not entitled because she was in receipt of income from employment (count 3); and
(b) on or about 7 April 2010, she made representations in writing to Centrelink, with the intention of dishonestly influencing a Commonwealth public official in the exercise of his or her duties as a public official, namely the decision to raise and recover a debt due to the Commonwealth by Maria De Faria, contrary to s 135.1(7) of the Code.
9 On 28 September 2012, Birmingham DCJ sentenced Maria De Faria to 18 months' imprisonment on each of counts 1 and 2. He ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 3 years' imprisonment. His Honour ordered that she be released after serving 12 months, upon entering into a recognizance in the sum of $10,000 to be of good behaviour for the balance of the sentence.
10 His Honour sentenced Sandra De Faria to 2 years' imprisonment on count 3 and 6 months' imprisonment on count 4. He ordered that the individual sentences be served concurrently. The total effective sentence was therefore 2 years' imprisonment. His Honour ordered that she be released after serving 12 months, upon entering into a recognizance in the sum of $10,000 to be of good behaviour for the balance of the sentence.
11 The total effective sentences commenced on 28 September 2012.
12 I have read the proposed reasons of Mazza JA. My view is different from his Honour's. I would dismiss the appeals. My reasons are as follows.
The facts and circumstances of the offending
13 Maria De Faria is Sandra De Faria's mother.
(Page 7)
14 Maria De Faria was born on 8 October 1943 and Sandra De Faria on 28 August 1961.
15 Between September 1997 and March 2009, Maria De Faria obtained $65,410.51 in payments from Centrelink to which she was not entitled because she was employed and in receipt of income.
16 Sandra De Faria was a nominee for Maria De Faria in that she was authorised to access her mother's Centrelink records and to deal with Centrelink on her mother's behalf.
17 On 3 September 1997, Maria De Faria applied for and was granted the pensioner partner allowance. She was entitled to this allowance, but the amount to be paid had to be reduced by the amount of her earnings. Maria De Faria stated in her application that she had not worked in the previous 12 months and that she had last worked on 31 July 1997. This was false. During the period of the offending she was employed at two schools.
18 On 8 October 2006, Maria De Faria became eligible for the aged pension. She submitted an application to Centrelink for this benefit but did not declare her employment or earnings.
19 Maria De Faria never informed Centrelink of her employment or earnings. Her offending was detected in March 2010 after an investigation by Centrelink.
20 Sandra De Faria's offending commenced on 10 December 2003 when she telephoned Centrelink and disputed a data match in relation to Maria De Faria which was based on information provided to Centrelink by the Australian Taxation Office. This data match indicated that Maria De Faria was receiving income from an employer. Sandra De Faria falsely represented to Centrelink that the data match related to the employment of her aunt and that her mother had never worked. Centrelink accepted the representations, decided that there was an incorrect data match and took no further action.
21 On 20 February 2007, Sandra De Faria telephoned Centrelink and disputed another data match which indicated that Maria De Faria was receiving earnings from an employer. Sandra De Faria again falsely represented that the data match related to the employment of her aunt. She also falsely represented that the aunt had the same name, the same birth date but in a different year and the same address as her mother.
(Page 8)
- Centrelink again accepted the representations, decided that there was an incorrect data match and took no further action.
22 On or about 30 July 2008, Sandra De Faria telephoned Centrelink and disputed yet another data match which indicated that Maria De Faria was receiving earnings from an employer. She repeated, in substance, her earlier representations.
23 The representations made by Sandra De Faria in the three telephone conversations gave rise to count 3 on the indictment.
24 On 19 March 2010, after completion of its investigation, Centrelink raised a debt against Maria De Faria for the amount she had received in excess of her proper entitlement. By letter dated 7 April 2010, Sandra De Faria asserted that her mother had never worked in Australia and that there had been an error or mix up. In the letter, Sandra De Faria requested Centrelink to review the debt because the demand for repayment was causing enormous stress to her fragile parents. The representation made in this letter gave rise to count 4 on the indictment.
25 Sandra De Faria's conduct assisted her mother in obtaining $30,924.92 in payments from Centrelink to which she was not entitled.
26 On 11 January 2012, Sandra De Faria participated in an interview with representatives of Centrelink. During the interview she made full admissions.
The expert evidence before the sentencing judge
27 The material before the sentencing judge included a report dated 19 June 2012 from a general medical practitioner, Dr Diane Faulkner-Hill, and report dated 24 September 2012 from a clinical psychologist, Mr Peter Jordan.
28 Dr Faulkner-Hill said that Maria De Faria had a number of chronic medical conditions, including severe osteoarthritis of her left knee, hypertension, hyperlipidaemia and thalassemia. She was unable to walk without support and was scheduled to have a left knee replacement. Maria De Faria had an injury to her right shoulder which caused tingling and loss of feeling in her right hand. She also suffered from anxiety and depression.
29 Mr Jordan recorded in his report:
(Page 9)
- Mrs De Faria … stated that her husband has suffered from Parkinson's Disease for the past 12 years and the deterioration in his condition necessitated him moving into a nursing home last year as Mrs De Faria was no longer able to care for him at home. She now continues to visit him on a daily basis.
30 According to Mr Jordan, Maria De Faria was suffering from an adjustment disorder 'due to the magnitude of recent stressful life events' and would benefit from ongoing psychological therapy.
Submissions before the sentencing judge in relation to Mr De Faria
31 Defence counsel for Maria De Faria and Sandra De Faria made written and oral submissions to the sentencing judge about the condition of Jose De Faria (Maria De Faria's husband and Sandra De Faria's father).
32 The submissions noted that Mr De Faria was aged 84 and suffering from Parkinson's Disease. His condition had deteriorated in recent months. He was visited regularly in turn by his wife and daughter. Mr De Faria was unaware that Maria De Faria and Sandra De Faria had been charged with these offences and had pleaded guilty. It was submitted that if his wife and daughter received a custodial sentence, Mr De Faria was unlikely to receive the additional supervision for his health and well-being which they were providing.
33 Neither the expert evidence nor the submissions dealt with Mr De Faria's life expectancy.
The application for leave to rely on additional evidence in the appeal
34 On 23 January 2013, Maria De Faria (but not Sandra De Faria) made an application in the appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), to rely on additional evidence in the appeal, namely a report dated 26 November 2012 from Dr D Oldham of the South Metropolitan Health Service. The application was supported by an affidavit sworn 23 January 2013 by Maria De Faria's solicitor, Gerald Chui Ren Yin.
35 Dr Oldham said that his report was based on advice he had received from a geriatrician, Dr Mark Wilson. The report states, relevantly:
(a) Mr De Faria is aged 84 and has been resident at the Amberley Nursing Home since mid-2011.
(b) Mr De Faria has advanced Parkinson's Disease. His condition is complicated by dementia and frequent hallucinations. His
- Parkinson's Disease was diagnosed in 2001. He is largely wheelchair bound. Dr Wilson is endeavouring to minimise the confusion and distressing hallucinations experienced by Mr De Faria.
- (c) Mr De Faria's prognosis is poor. There is a high risk that he will die in the next few years as a result of progressive dementia and immobility. Indeed, there is a significant risk that he may not survive one year.
(d) Dr Wilson thinks that Mr De Faria is unlikely to be able to recall why his wife and daughter are no longer visiting him regularly, and their absence is likely to cause him significant distress with a consequent increase in his confusion, agitation and depression.
36 On 25 January 2013, Mazza JA ordered that the application to rely on the additional evidence be referred to the hearing of the appeal.
37 At the hearing, counsel for the respondent did not oppose the court receiving Dr Oldham's report as additional evidence in each of the appeals.
Maria De Faria's grounds of appeal
38 Maria De Faria relies on four grounds of appeal.
39 Ground 1 alleges that the sentencing judge erred by imposing an immediate custodial sentence rather than ordering her immediate release.
40 Ground 2 alleges that his Honour erred in finding that her age was not a significant mitigating factor because the offending had occurred over a long period of time and she had herself to blame for coming to court as a person of advanced years.
41 Ground 3 alleges that his Honour erred in failing to take into account, adequately or at all, in deciding to impose an immediate custodial sentence, the state of health of her husband and the role she played in his ongoing physical and emotional care and support.
42 Ground 4 alleges that his Honour erred in ordering that the individual sentences for counts 1 and 2 be served cumulatively because the offending formed part of the same transaction.
(Page 11)
43 On 15 November 2012, Mazza JA granted leave to appeal on grounds 1 and 4 and referred the application for leave to appeal on the other grounds to the hearing of the appeal.
Sandra De Faria's grounds of appeal
44 Sandra De Faria relies on three grounds of appeal.
45 Ground 1 alleges that the sentence imposed on her infringed the parity principle.
46 Ground 2 alleges that his Honour erred by failing properly to consider the imposition of an order that she be released forthwith, upon giving security, from the term of imprisonment, pursuant to s 20(1)(b) of the Crimes Act.
47 Ground 3 alleges that his Honour erred by imposing a sentence that was manifestly excessive.
48 On 21 October 2012, Mazza JA granted leave to appeal on grounds 1 and 3 and referred the application for leave to appeal on the other ground to the hearing of the appeal.
Maria De Faria's appeal: grounds 1, 2 and 3
49 It is convenient to consider grounds 1, 2 and 3 together.
50 An appellate court hearing an appeal against sentence by an offender may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. An appellate court may intervene only if the offender demonstrates that the sentencing judge made an express or implied material error or that a miscarriage of justice occurred at the sentencing hearing. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
51 Further, even if a material error or a miscarriage is established, this court cannot set aside the original sentencing decision unless it is satisfied that a different sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
52 The general principles applicable to the sentencing of offenders for federal offences are set out in my reasons (McLure P & Mazza JA agreeing) in De Hollander v The Queen [2012] WASCA 127 [65] - [70].
(Page 12)
53 Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court. Those matters include the probable effect that any sentence or order under consideration would have on any of the person's family or dependants: s 16A(2)(p).
54 This court has stated on countless occasions the test for determining whether a sentence is manifestly excessive. See, for example, Petrelis v The State of Western Australia [2012] WASCA 235 [62] - [63] (Buss JA, Mazza JA agreeing).
55 The maximum penalty for Maria De Faria's offending against s 29D (now repealed) of the Crimes Act (count 1) was 10 years' imprisonment or a $110,000 fine or both. The maximum penalty for her offending against s 135.1(5) of the Code (count 2) was 5 years' imprisonment or a $33,000 fine or both.
56 Section 20 of the Crimes Act is concerned with the conditional release of federal offenders after conviction.
57 Section 20(1)(b) provides that where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, sentence the person to imprisonment in respect of the offence or each offence, but direct, by order, that the person be released, upon giving security of the kind referred to in s 20(1)(a), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences, that is calculated in accordance with s 19AF(1).
58 As I noted (McLure P and Mazza JA agreeing) in De Hollander [86], 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. 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
(Page 13)
- 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.
59 The statements of principle by the High Court in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629, Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 and Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 in relation to determining a non-parole period for a federal offence apply by analogy in determining whether a person who has been sentenced to a term of imprisonment for a federal offence should be released under s 20(1)(b), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence. See De Hollander [80] - [83].
60 Diverse sentences have been imposed for offending against s 29D (now repealed) of the Crimes Act and against s 135.1 of the Code. There is no sentencing tariff for such offences because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts.
61 I have reviewed numerous cases which have dealt with social security fraud. See, for example, R v Desborough [2010] QCA 297; Director of Public Prosecutions (Cth) v Parfrey [2010] VSCA 212; Payne v The Queen [2010] WASCA 177; R v Newton [2010] QCA 101; R v Thomson [2009] SASC 237; Grenfell v The Queen [2009] NSWCCA 162; (2009) 196 A Crim R 145; Coombe v The Queen [2009] WASCA 105; Yarak v The Queen [2008] NSWCCA 298; R v Schultz [2008] NSWCCA 199; Whyte v Director of Public Prosecutions (Cth) [2008] SASC 310; Ord v The Queen [2008] NSWCCA 162; (2008) 186 A Crim R 475; McGuiness v The Queen [2008] NSWCCA 80; Pennington v McLean [2008] TASSC 4; R v Lovel [2007] QCA 281; Bick v The Queen [2006] NSWCCA 408; Evans v The Queen [2006] NSWCCA 349; Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291; Thomas v The Queen [2006] NSWCCA 313; R v Wood [2005] NSWCCA 233; Norton v The Queen [2003] WASCA 86. I appreciate that some of these cases involved offending against provisions which are analogous to s 135.1, but carry a higher maximum penalty.
(Page 14)
62 Part VIII of the Prisons Act 1981 (WA) is headed, 'Authorised absences from prison'. It sets out provisions which apply to authorised absences of prisoners from prison.
63 By s 83(2) of the Prisons Act, the chief executive officer of the Government department principally assisting the Minister with the administration of the Act may give written permission for a prisoner to be absent from a prison or other facility (an 'absence permit').
64 By s 83(5), the chief executive officer is not to give an absence permit unless he or she is satisfied that the absence will facilitate the achievement of one or more of the objectives enumerated in s 83(1), namely:
(a) the rehabilitation of prisoners and the successful reintegration of prisoners into the community; and
(b) the compassionate or humane treatment of prisoners and their families; and
(c) the facilitation of the provision of medical or health services to prisoners; and
(d) the furthering of the interests of justice. (emphasis added)
65 Section 83(3) provides that an absence permit may be given:
(a) for a purpose or in circumstances prescribed in the Regulations; or
(b) to deal with circumstances that are, in the chief executive officer's opinion, exceptional,
and not for any other reason.
66 Part V, div 9 of the Prisons Regulations 1982 (WA) sets out various purposes for which or circumstances in which an absence permit may be granted, and the procedures which apply in respect of absence permits.
67 Regulation 54D specifies the prescribed circumstances, for the purposes of s 83(3)(a) of the Act. Those circumstances include, relevantly:
(i) facilitating the maintenance of contact between a prisoner and his or her family, or any other approved person, and enabling the prisoner to meet responsibilities to that family or person, including parental or guardianship responsibilities;
(Page 15)
- (j) enabling the prisoner to be absent from prison on compassionate grounds. (emphasis added)
68 By reg 54F(2), relevantly, every prisoner is eligible to receive an absence permit for a purpose or in circumstances mentioned in reg 54D(j). By reg 54F(3), relevantly, a prisoner who has been given a minimum security rating by the chief executive officer is eligible to receive an absence permit for a purpose or in circumstances mentioned in reg 54D(i).
69 Counsel for Maria De Faria submitted that the sentencing judge failed to take into account, 'adequately or at all', in deciding to impose an immediate custodial sentence, her personal circumstances and antecedents (in particular, her prior good character, age and poor health), the fact that full restitution had been made or the state of Mr De Faria's health and her role in his ongoing physical and emotional care and support.
70 As to these matters:
(a) An alleged failure by a sentencing judge to give adequate weight to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene. See Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P and Mazza J agreeing) and the cases there cited.
(b) The sentencing judge noted Maria De Faria's age and physical and mental condition in his sentencing remarks (ts 65). He said:
Your health you describe as bad. You reported for the interview [with the author of the pre-sentence report] in a wheelchair assisted by your daughter having recently had a knee replacement in July 2012. It's your third knee replacement operation in 10 years and you presented with pain. A letter from your doctor confirms that you have a number of chronic medical conditions including severe osteoarthritis of the left knee, hypertension, hyperlipidaemia and thalassaemia. The operations [sic] confirmed that you also have apparently an arm injury.
Your doctor reports that you suffer from anxiety and depression and would be distraught if you were required to spend any time in detention. You appeared to experience a panic or an asthma attack during the interview and needed time to calm down and breathe slowly. It's acknowledged that you do have ill
- health, … particularly in relation to problems with your knees. You come before the court as a person who's almost 69 years old (ts 65).
- A little later, his Honour said he was obliged 'to be merciful and have regard to [Maria De Faria's] health because it's a relevant sentencing consideration and I do so' (ts 68).
- (c) His Honour returned to Maria De Faria's age and health:
I note in the course of submissions, it's suggested that I should be merciful because now, particularly you, Maria, are now in poorer health than you have been in the past. One would suggest that your health has seemingly not been that significantly affected insofar as you were able to maintain employment in two jobs up until at least 2008. It seems to be of more recent origin.
That said, the fact that you now are in that physical state when you arrived for court to be sentenced for these offendings occurs as a result of your conduct, that is to say, that when this fraud was first detected in 2003 you perpetuated it by you continuing working and not disclosing the truth and you, Sandra, telling the lie to enable it to occur.
Furthermore, in 2006 when you changed [to] the age pension, Maria De Faria, you again perpetuated the lie that continued on. That you now appear before me aged 69 [sic: aged 68] is a consequence of you continuing to perpetrate a fraud for 11 years, not as a consequence of anything otherwise.
It was by your deliberate decision and to deceive the State and the Commonwealth that you put [yourself] beyond compassionate and merciful resolution of the matter. It might be fairly said that your cry for merciful disposition comes too late. The delay was caused by you perpetrating the fraud over a period of time notwithstanding all the very serious attempts at discovering the fraud.
That said, I am obliged to be merciful and have regard to your health because it's a relevant sentencing consideration and I do so. I do have regard to the fact that if I impose a term of imprisonment and require you to serve that immediately, it will have considerable moment upon you and that is a factor that I bear in mind particularly in relation to the state of your health, Maria De Faria (ts 68 - 69).
(d) The sentencing judge referred to 'the issue of your character, antecedents' (ts 65). He then mentioned the pre-sentence report and the reports of Dr Faulkner-Hill and Mr Jordan. The pre-sentence report set out, in some detail, matters relating to
- Maria De Faria's character and antecedents. Also, his Honour noted Maria De Faria's 'age and health and background' in deciding upon the total effective sentence (ts 71). Further, he said that he '[had] regard to [her] age, [her] health and the circumstances in which the offending took place' including the psychological evidence to the effect that she was 'significantly affected by anxiety and depression' in fixing the pre-release period (ts 73). In addition, his Honour said he would 'take into account the personal circumstances' of Maria De Faria and her daughter (ts 69).
- (e) His Honour accepted that Maria De Faria was remorseful for her offending, but said she did not appear to have accepted responsibility for what she had done (ts 61). He referred to her failure to make full disclosure about the nature and extent of her offending to Mr Jordan (ts 61). He also noted she had 'plenty of opportunities … to do the honest thing but [she] chose to continue with the fraud' (ts 61).
(f) The sentencing judge '[acknowledged] that' each of the offenders had 'shown a degree of contrition and remorse' and had 'taken actions by way of reparation' (ts 63). He noted that Sandra De Faria was primarily responsible for the restitution. His Honour concluded that the restitution was not necessarily 'a willing recognition by reparation' of the wrongdoing (ts 64). The vast majority of the restitution was not made until after service of the prosecution notices.
(g) His Honour mentioned the ill health of Maria De Faria's husband:
I have also been provided with very considerable information in relation to the ill health of … your husband. There is no doubt that he is seriously unwell and is presently unable to be cared for at home and in a aged person's home. He is some 88 [sic: 84] years of age (ts 66 - 67).
72 Maria De Faria is unlikely to reoffend. Personal deterrence was not an important sentencing factor, but his Honour said that the sentencing outcome had to 'perhaps reflect the need [for] some aspect of personal
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- deterrence given your attitude to the offending, namely that it was continued over a period of time even when discovered' (ts 69).
73 In The State of Western Australia v Munda [2012] WASCA 164 [198] - [203], I reviewed decisions of this court as to the test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) of the Criminal Appeals Act.
74 In Wheeler v The Queen [No 2] [2010] WASCA 105, McLure P (at [3]) and Owen JA (at [52] - [53]) decided that the test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) of the Criminal Appeals Act in an appeal against sentence correlates with the requirement in s 31(4) of the Act that this court may allow the appeal if, in its opinion, a different sentence should have been imposed. Owen JA referred to the distinction between 'fresh' and 'new' evidence in the context of this court's power under s 40(1)(e), and said that the distinction is of lesser significance in an appeal against sentence than in an appeal against conviction, but the court may be guided by similar considerations [53].
75 In The State of Western Australia v Hyder [2011] WASCA 256, this court allowed a State appeal against sentence. McLure P (Buss JA & Mazza JA agreeing) noted [25]:
Generally, an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) of the Criminal Appeals Act 2004 (WA) (the Act). However, it has a broad power to admit other evidence under s 40(1)(e) of the Act: Wheeler v The Queen[No 2] [2010] WASCA 105 [52] (Owen JA). The general test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler [3], [53].
76 Dr Oldham's report explains, specifically and in detail, the facts and circumstances relating to Mr De Faria's medical condition which were generally before the sentencing judge. The report elaborates on the information before his Honour (for example, by expressing opinions as to Mr De Faria's life expectancy) and puts the information before his Honour in a new light. I will consider whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed, before deciding whether to admit the additional evidence.
77 The facts and circumstances of Maria De Faria's offending were very serious. She persisted in her deception over an extended period. She worked under an assumed identity, being a variation of her correct name.
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- She was motivated by greed. She did not voluntarily cease her offending even after Centrelink made inquiry of her in 2003, and again in 2007, about the extent of her eligibility for benefits. Indeed, in 2006 she made an application to Centrelink for the aged pension without declaring her employment or earnings.
78 The social security system relies on the honesty of applicants for, and recipients of, benefits. The system is a major impost on the Australian government's revenue and taxpayers. Frauds of the kind perpetrated by Maria De Faria are prevalent and difficult to detect. General deterrence is an important sentencing consideration. See Payne [42] - [43] (Buss JA, McLure P & Mazza J agreeing) and the cases there cited.
79 In my opinion, it is apparent, on a fair reading of the sentencing remarks as a whole, that the sentencing judge took into account, in deciding to impose an immediate custodial sentence, Maria De Faria's personal circumstances and antecedents (including her character, age and health), the fact that full restitution had been made and the state of Mr De Faria's health and her role in his ongoing physical and emotional care and support.
80 His Honour pointed out, correctly, that Maria De Faria was being prosecuted in the criminal justice system at a relatively advanced age because she had persisted in defrauding Centrelink for more than 11 years.
81 The mitigating force of the matters relied on by counsel for Maria De Faria had to be weighed with the seriousness of her offending, the fact that she was motivated by greed, her ongoing criminal behaviour and the importance of general deterrence. In the circumstances, the matters relied on by counsel were not significant mitigating factors.
82 There is no reasonable basis for concluding that the weight which the sentencing judge accorded to the various mitigating matters amounted, in substance, to a failure to exercise the sentencing discretion.
83 The state of affairs relating to Mr De Faria (as explained in Dr Oldham's report) is, no doubt, distressing for, and will occasion some hardship to, him, his wife and daughter. However, these circumstances, when considered with all other relevant facts and circumstances and all relevant sentencing factors, do not constitute a proper basis for setting aside his Honour's sentencing disposition. My reasons are as follows.
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84 First, Mr De Faria has been resident in the nursing home since mid-2011. His wife and daughter were not taken into custody until 28 September 2012. So, Mr De Faria was not placed in the nursing home as a result of their incarceration. Secondly, there is no suggestion that Mr De Faria's primary caregivers at the nursing home are not ensuring that he receives appropriate medical treatment and sympathetic care and support. Thirdly the legislative scheme under the Prisons Act and the provisions of the Prisons Regulations expressly empower the chief executive officer to grant a prisoner an absence permit to facilitate the compassionate or humane treatment of the prisoner and his or her family. It is reasonably to be anticipated that, in the state of affairs described by Dr Oldham, the chief executive officer would, on application, grant Maria De Faria an absence permit for the purpose of enabling her to visit her husband reasonably often, provide him with solace and reassurance, and alleviate his confusion and distress. Fourthly, as I have mentioned, this court is not entitled to intervene merely because it would have exercised the sentencing discretion differently from the sentencing judge. Fifthly, as I will explain in a moment, his Honour did not make a material sentencing error and, had Dr Oldham's report been before his Honour, a different sentence should not have been imposed.
85 In my opinion, the trial judge did not err in failing to release Maria De Faria forthwith under s 20(1)(b) of the Crimes Act. Also, the length of the total effective sentence and the length of the pre-release period, when evaluated in the context of the maximum penalty for each offence, the objective seriousness of the offending, Maria De Faria's personal circumstances and antecedents, and all mitigating and aggravating factors (including the additional evidence in Dr Oldham's report and her fast-track pleas of guilty), do not indicate that the sentencing disposition was in any respect plainly unreasonable or unjust. His Honour did not make an express material error and no miscarriage of justice occurred. I would not infer error from the sentencing outcome. All of the sentences were of a severity that was appropriate in all the circumstances.
86 Grounds 1, 2 and 3 fail.
Maria De Faria's appeal: ground 4
87 In Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585, Steytler P examined the so-called one transaction 'rule' or continuing episode 'rule'. His Honour said:
It is plain that this 'rule' is not a rule at all, but merely a guideline or, as it was described in Ruane v The Queen (1979) 1 A Crim R 284, a 'good
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- working rule'. Each case must, in the end, depend upon its own circumstances and it is for the sentencing Judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 - 721 [23].
88 In my opinion, the sentencing judge correctly understood that the critical issue was the proper sentence to be imposed for the overall criminality involved in both of the offences (ts 71). Count 1 related to the period between 3 September 1997 and 23 May 2001. Count 2 related to the period between 24 May 2001 and 18 March 2009. The continuing nature of the offending together with the making of separate and dishonest applications to Centrelink in 1997 and 2006 made it inappropriate to apply the one transaction 'rule'. The accumulation of the individual sentences for counts 1 and 2 was justified. The imposition of wholly or partly concurrent sentences would not have been an appropriate measure of the appellant's overall criminality.
89 Ground 4 fails.
Maria De Faria's appeal: conclusion
90 The application for leave to rely on additional evidence in the appeal should be dismissed.
91 I would refuse leave to appeal on ground 2 but grant leave on ground 3. However, none of the grounds has been made out and the appeal must therefore be dismissed.
Sandra De Faria's appeal: ground 1
92 It is unnecessary to restate the principle of parity of sentencing as between co-offenders. It has been explained on numerous occasions in this court. See, for example, Nicolaides v The State of Western Australia [2012] WASCA 199 [101] - [102] (Buss JA, Mazza JA agreeing) and the cases there cited.
93 Earlier in these reasons I have summarised the facts and circumstances of Maria De Faria's offending and Sandra De Faria's offending.
94 Counsel for Sandra De Faria submitted that her criminality was at a lower level than her mother's. Counsel emphasised that Sandra De Faria
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- had offended over a shorter period; her criminal conduct was responsible for defrauding Centrelink of less than half of the total amount in question; count 1 carried a higher maximum penalty than counts 3 and 4; Maria De Faria's motive was greed whereas Sandra De Faria acted out of a misguided attempt to protect her mother from criminal prosecution and public shame; Sandra De Faria did not benefit personally from the fraud; she was responsible for making the vast majority of the restitution; and she had no prior convictions whereas her mother had a prior conviction for stealing.
95 There is some force in these submissions. However, I am not persuaded that there is a proper basis for concluding that the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance on the part of Sandra De Faria or of giving the appearance in the mind of an objective observer that justice has not been done as between mother and daughter.
96 An appellate court will not interfere pursuant to the parity principle unless there has been a marked and unjustifiable disparity or there has been an absence of marked and justifiable disparity, as the case may be.
97 Sandra De Faria's offending was very serious. Her deceitful behaviour, in the three telephone conversations in 2003, 2007 and 2008, facilitated the maintenance of the fraud. Her deception was repeated in 2010 when she wrote the dishonest letter to Centrelink. She told lies to deflect Centrelink's attention from the true position.
98 Maria De Faria received a total effective sentence of 3 years' imprisonment and Sandra De Faria a total effective sentence of 2 years' imprisonment. Each of them was given a pre-release period of 12 months. The extent of the disparity between the total effective sentences, and the absence of any disparity between the pre-release periods, was appropriate. Maria De Faria was 68 when sentenced, she had chronic medical conditions and she suffered from anxiety and depression. By contrast, Sandra De Faria was only 51 when sentenced and she was in good health. The points raised by counsel for Sandra De Faria were appropriately recognised in the lengths of the total effective sentences. However, they were counterbalanced, in the fixing of the pre-release periods, by the personal circumstances of Maria De Faria that I have mentioned.
99 Ground 1 fails.
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Sandra De Faria's appeal: grounds 2 and 3
100 The maximum penalty for Sandra De Faria's offending against s 135.1(5) read with s 11.2(1) of the Code (count 3) and for her offending against s 135.1(7) of the Code was 5 years' imprisonment or a $33,000 fine or both.
101 The applicable sentencing principles, some of the cases I have reviewed in connection with social security fraud and relevant provisions of the Prisons Act and Prisons Regulations are set out in my reasons in relation to grounds 1, 2 and 3 of Maria De Faria's appeal.
102 I have previously recounted the facts and circumstances of Sandra De Faria's offending. I have also discussed various aspects of her offending in considering ground 1 of her appeal.
103 The information before the sentencing judge indicated that Sandra De Faria was otherwise of good character. A number of written references spoke well of her. She has been a very dutiful daughter and has taken great care of her parents. Sandra De Faria has willingly helped others in need. She has a good work history. At the time of sentencing, she was a licensed real estate agent and was employed as a commercial property manager and a sales manager. It is almost inevitable that her licence will be revoked as a result of her conviction. She borrowed money from a bank to enable restitution to be made to Centrelink. She is unlikely to reoffend. Personal deterrence was not an important consideration.
104 The observations I have made about Dr Oldham's report and the Prisons Act and the Prisons Regulations and about the importance of general deterrence in sentencing for social security fraud, in the context of grounds 1, 2 and 3 of Maria De Faria's appeal, apply to grounds 2 and 3 of Sandra De Faria's appeal.
105 In my opinion, his Honour gave proper consideration to the imposition of an order that Sandra De Faria be released forthwith, upon giving security, from the term of imprisonment, pursuant to s 20(1)(b) of the Crimes Act. None of the sentences he imposed on her was in any respect plainly unreasonable or unjust. The total effective sentence bears a proper relationship to the overall criminality involved in counts 3 and 4, viewed together, and having regard to all relevant sentencing principles and all relevant circumstances. The length of the total effective sentence and the length of the pre-release period, when examined in the context of the maximum penalty for each offence, the objective seriousness of the
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- offending, Sandra De Faria's personal circumstances and antecedents, and all mitigating and aggravating factors (including the additional evidence in Dr Oldham's report and her fast-track pleas of guilty), do not indicate that his Honour's sentencing discretion miscarried. No express material error is discernible from his Honour's sentencing remarks and no miscarriage of justice occurred. Sandra De Faria received sentences that were, in all the circumstances, of an appropriate severity.
106 Grounds 2 and 3 fail.
Sandra De Faria's appeal: conclusion
107 I would grant leave to appeal on ground 2. However, none of the grounds has been made out. The appeal should be dismissed.
108 MAZZA JA: Maria Manuela de Faria and Sandra Maria Goncalves de Faria are mother and daughter. Each pleaded guilty to dishonesty offences in connection with Centrelink benefits paid to the first-named appellant. On 28 September 2012, each was sentenced to a term of immediate imprisonment by Birmingham DCJ. Before this court are their appeals against sentence. I would allow the appeals for the reasons that follow. For the sake of convenience, and meaning no disrespect, I will refer to the first-named appellant as Maria and to the second-named appellant as Sandra.
Details of the offences and the sentences
109 Maria pleaded guilty on the fast-track system to, between 3 September 1997 and 23 May 2001, defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth) (count 1) and to, between 24 May 2001 and 18 March 2009, dishonestly causing a loss to the Commonwealth, contrary to s 135.1(5) of the Criminal Code (Cth) (the Code) (count 2). The offences cover a continuous course of conduct over 11 1/2 years. The prosecutor informed his Honour that the offending comprised two offences only because s 29D of the Crimes Act wasrepealed and replaced with s 135.1 of the Code.
110 Sandra pleaded guilty on the fast-track system to one count of aiding Maria to dishonestly cause a loss to the Commonwealth, contrary to s 135.1(5) of the Code when read with s 11.2(1) of that statute (count 3) and one count of making a representation to the Commonwealth with the intention of dishonestly influencing a Commonwealth official in the exercise of his or her duty as a public official, contrary to s 135.1(7) of the Code(count 4).
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111 The maximum penalties for these offences are as follows:
(a) for an offence contrary to s 29D of the Crimes Act - imprisonment for 10 years and/or a $110,000 fine;
(b) for an offence contrary to s 135.1(5) of the Code- imprisonment for 5 years and/or a $33,000 fine;
(c) for an offence contrary to ss 11.2(1) and 135.1(5) of the Code- imprisonment for 5 years and/or a $33,000 fine; and
(d) for an offence contrary to s 135.1(7) of the Code - imprisonment for 5 years and/or a $33,000 fine.
112 His Honour sentenced Maria to 18 months' imprisonment on each charge, to be served cumulatively. Thus, the total effective sentence was 3 years' imprisonment. His Honour ordered that she be released after serving 12 months of that sentence, upon entering into a recognisance in the sum of $10,000 to be of good behaviour for the balance of the sentence.
113 His Honour sentenced Sandra to 2 years' imprisonment on count 3 and 6 months' imprisonment on count 4, to be served concurrently. Thus, the total effective sentence was 2 years' imprisonment. His Honour ordered that she be released after serving 12 months, upon entering into a recognisance in the sum of $10,000 to be of good behaviour for the balance of the sentence.
The facts in respect of Maria's offending
114 Between 3 September 1997 and 18 March 2009, Maria obtained a total amount of $65,410.51 in pensioner partner allowance and aged pension payments from Centrelink to which she was not entitled. Maria was not entitled to these payments because, contrary to the information that she had given Centrelink on her claim forms, she was, throughout this period, employed on a part-time basis under the name Manuela Faria and was in receipt of income from that employment. At no time did she inform Centrelink of her employment. It was accepted that Maria had some entitlement to benefits, but that entitlement was, at all times, means tested and affected by any income received from her employment (ts 59). His Honour found that, after 2002, the motivation for Maria's offending was 'greed and nothing else' (ts 63).
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The facts in respect of Sandra's offending
115 Sandra was a nominee of the appellant for the purpose of conducting business with Centrelink. This meant that she was authorised to deal with Centrelink on her mother's behalf.
116 In late 2003, Centrelink notified Maria of a data match based on information provided to it by the Australian Taxation Office that indicated that Maria was receiving income from her employer. On 10 December 2003, Sandra telephoned Centrelink and disputed the data match. She falsely represented that the data match information related to the employment of her aunt and that her mother had never worked. Centrelink accepted these representations and took no further action.
117 On 20 February 2007, following the receipt of another data match indicating that Maria was working, Sandra again telephoned Centrelink to dispute the data match. She again falsely represented that the data match related to the employment of her aunt. She said that her aunt's name was Manuela Faria. She also said that her aunt had the same birth date, but in a different year, as her mother and that the aunt lived at the same address as her mother. Centrelink accepted the representations as correct and took no further action.
118 In 2008, Centrelink received yet another data match. On 30 July 2008, Sandra telephoned Centrelink to dispute the match. She repeated the false representations that the data match related to her aunt and that her mother had never worked.
119 These three telephone contacts made to Centrelink by Sandra were the subject of count 3.
120 Investigations by Centrelink ultimately revealed that the data match was accurate and that:
(a) Maria and Manuela Faria were the same person; and
(b) Maria had been in paid employment, contrary to the representations made by Sandra.
121 On 19 March 2010, Centrelink raised a debt against Maria. On 9 April 2010, Centrelink received a letter, dated 7 April 2010, written by Sandra. In that letter, Sandra falsely stated that her mother had never worked in Australia and that there had been some sort of mix-up. Sandra requested that the debt be reviewed as the situation was causing enormous
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- stress to her fragile parents. The false representations made in this letter were the basis of count 4.
122 Centrelink's investigation continued. On 8 December 2010, Maria was invited to participate in a record of interview. By a letter dated 13 December 2010, Sandra declined that invitation on behalf of her mother. In that letter, Sandra begged Centrelink not to pursue the matter further and offered to sell the family home to repay the debt in full. She stated in the letter that no real satisfaction could be gained by pursuing 'silly, sick, old people for a conviction' (ts 58). She stated that they would accept responsibility and that the shame of a conviction would be catastrophic to her family.
123 On 11 January 2012, Sandra participated in a recorded interview, under caution, with officers from Centrelink. In the course of that interview she, in effect, admitted her wrongdoing. She told the investigators that she knew that her mother was working and that there was no such person as Manuela Faria. She admitted making the three telephone calls the subject of count 3 and that she knew that the representations made in those calls were false. Further, she admitted writing the letter the subject of count 4 and that she knew the representations contained in it were false.
124 As a result of Sandra's conduct, from 2003 Maria received payments totalling $30,924.92 to which she was not entitled.
Reparation
125 As I have already said, the total amount paid to Maria to which she was not entitled was $65,410.51. Of this, $17,028.97 relates to count 1, and the balance of $48,381.54 relates to count 2. Full reparation of this sum was made prior to the appellants being sentenced. Sums were deducted from Maria's pension until 24 May 2012. Two sums of $20,000 were paid to Centrelink on 25 and 26 May 2012, and a final sum of $16,975.01 was paid on 28 May 2012. Sandra used an overdraft facility she had to make these three payments.
The grounds of appeal
126 Maria's grounds of appeal are as follows:
1. The learned sentencing Judge erred by imposing an immediate custodial sentence rather than ordering that the applicant be released immediately.
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- 2. The learned sentencing Judge erred in finding that the applicant's age was not a significant mitigating factor because the offending had occurred over a long period of time and that the applicant effectively had herself to blame for coming to the Court as a person of advanced years.
3. The learned sentencing Judge erred in failing to take into account, adequately or at all, in imposing a sentence of immediate imprisonment, the state of health of the applicant's husband and the role the applicant played in his ongoing physical and emotional care and support.
4. The learned sentencing Judge erred in ordering that the sentences on Counts 1 and 2 be served cumulatively in circumstances where the offending formed park of the same transaction.
127 Leave to appeal has been granted in respect of grounds 1 and 4. The question of leave to appeal on grounds 2 and 3 was referred to the hearing of the appeal.
128 Sandra's grounds of appeal are as follows:
1. The sentencing process resulted in a miscarriage of justice because the appellant has been left with a justifiable sense of grievance, so as to give the appearance to an impassive, objective bystander that justice has not been done, as a consequence of the identical period that both the appellant and her co-offender are required to serve prior to being released, despite the differences in their relative criminality.
2. The learned sentencing Judge erred by failing to properly consider the imposition of an order that the appellant be released forthwith (upon giving security), from the term of imprisonment imposed, pursuant to Section 20(1)(b) of the Crimes Act 1914 (Commonwealth).
3. The learned sentencing judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offence and matters personal to the appellant.
129 Leave to appeal has been granted in respect of grounds 1 and 3, and the question of leave to appeal on ground 2 was referred to the hearing of the appeal.
Matters personal to Maria
130 Maria was aged between 54 and 65 years during the period of her offending. She was almost 69 years of age when she was sentenced. She
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- has been married for 52 years to her husband, Jose de Faria. Maria and Jose have two adult children, the eldest of whom is Sandra.
131 Maria arrived in Australia over 50 years ago. Character references tendered to his Honour showed that she was well-regarded in the community and that she had worked as a volunteer and had been, at one time, president of the Migrant Women's Association.
132 Evidence tendered to his Honour showed that Maria suffers from a number of chronic medical conditions including severe osteoarthritis of her left knee, hypertension, hyperlipidaemia and thalassemia. She also has encountered problems with her right shoulder and arm. Perhaps her most serious physical ailment concerns her knees. In July 2012, she had a knee replacement, the third in ten years. The condition of her knee is such that it adversely affects her mobility (ts 65 and report of Dr Diane Faulkner-Hill, 19 June 2012). In addition to the physical ailments I have described, Maria also suffers from anxiety and depression. According to Peter Jordan, a clinical psychologist whose report was tendered to his Honour, Maria 'is currently suffering from an Adjustment Disorder due to the magnitude of recent stressful life events' (report dated 24 September 2012). The 'recent stressful life events' referred to by Mr Jordan include her husband's ill health, the sudden death of her mother in August 2012 and the criminal proceedings against her. Maria has a minor criminal history. In 1992, she was convicted of stealing and fined $100.
Matters personal to Sandra
133 At the time she was sentenced, Sandra was 51 years of age. She is single and has no dependents. She left school after completing year 12 and completed three years of tertiary education. She has no criminal history.
134 Sandra was a successful restaurateur. She was injured in a car accident in 1999. In 2000 she lost her restaurant business because of a fire. In more recent times, she has been employed as a strata manager for a real estate business where she is well regarded. She has a real estate representative's licence which, due to her convictions, is very likely to be revoked.
135 It was not disputed that Sandra has been a devoted and caring daughter to her parents and her grandparents.
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136 Character references tendered to his Honour spoke highly of her. His Honour accepted that Sandra was 'a very dutiful daughter' to her parents. His Honour noted the extent to which Sandra was 'always there for others and willingly help[ed] others in a distressed or troubled situation' (ts 66).
The health of Jose de Faria
137 The unchallenged evidence before his Honour was that Jose de Faria is seriously unwell. Mr de Faria is 84 years of age and has been suffering from Parkinson's disease for approximately 12 years. He has other medical problems. Until 2011, he was being cared for at home by the appellants. However, in 2011 his condition deteriorated to the point where he was no longer able to be cared for at home, and since that time he has been a resident in a nursing home. Both appellants regularly visited Mr de Faria and provided emotional support. Sandra arranged and paid for physiotherapy treatment for him. Mr de Faria was not made aware of the charges laid against the appellants.
138 Although his Honour was aware of Mr de Faria's condition, no precise evidence was put before him as to his life expectancy. Having said this, it must have been obvious to his Honour that if he imposed sentences of immediate imprisonment, there was a prospect that Mr de Faria might die whilst the appellants were serving their sentences.
139 By an application filed 23 January 2013, Maria sought to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) in respect of Mr de Faria's health. The evidence was a report from Dr D Oldham, dated 26 November 2012. Dr Oldham is not Mr de Faria's treating practitioner. His report was based on information provided to him by Mr de Faria's treating geriatrician, Dr Mark Wilson. After describing in some detail Mr de Faria's medical condition, treatment and care, he says:
6. Long term prognosis: Mr De Faria's prognosis is poor, with a high risk of mortality in the next few years, due to a combination of progressive dementia and immobility resulting from the inability to adequately treat the Parkinson's motor symptoms.
7. Impact of Mrs De Faria and daughter being imprisoned for one year:
a) I think Mr De Faria is unlikely to be able to recall the reason why his wife and daughter are no longer visiting him regularly, and is likely to be significantly distressed by their absence. This may lead to increased confusion,
- agitation and depression. Increased agitation may lead to increased sedative drugs, which unfortunately do cause complications such as worsening confusion, reduced mobility and delirium. They were a very supportive family when Mr De Faria was at home, maintaining his care without any community support when I first reviewed him in 2011. At that stage Mr De Faria was clearly entitled to high level community and residential care, and it clearly took a tremendous amount of work to keep him at home.
- b) There is a significant risk that Mr De Faria may not survive one year.
140 No up-to-date report was provided to this court at the hearing of this appeal. Mr Ritter SC for the respondent had no objection to the court receiving this report, but submitted it was of little weight (appeal ts 23). I would allow the application to adduce Dr Oldham's report into evidence.
His Honour's sentencing remarks
141 The learned sentencing judge described Maria's offending as amounting to a serious fraud. His Honour said that he considered Maria's offences 'to be at the upper end for offences of this type', having regard to the duration of the deceit and the steps taken to maintain it (ts 63).
142 In relation to Sandra, his Honour found that her actions enabled Maria to perpetrate the fraud from 2003 and thereby assisted her to obtain $30,924.92 of the amount she received to which she was not entitled (ts 59). His Honour noted that Sandra had deliberately perpetuated the false claim made by Maria to Centrelink. On each of the three occasions the subject of count 3, Sandra had taken the initiative to contact Centrelink and make the false statements in order to deflect Centrelink's attention away from her mother (ts 62 and 64).
143 His Honour had regard to such of the factors set out in s 16A(2) of the Crimes Act that were relevant to the case.
144 In respect of each appellant, he acknowledged that the pleas of guilty were entered at the first available opportunity. He acknowledged that each appellant had shown 'a degree of contrition and remorse … and taken actions by way of reparation in this matter' (ts 63). However, his Honour was of the view that the reparation had not been done willingly. He referred to the fact that while repayments were initially being paid by deductions from the pension to which Maria was entitled, the final
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- payments were not made until the prosecution notice was issued. To this his Honour said:
One would have thought that if you were truly addressing your offending, the arrangements would have been made sooner for the payment of the debt (ts 63).
Well, most importantly, the health of your husband has significantly deteriorated and he is now in a nursing home (ts 65).
146 With respect to Sandra, his Honour recognised her favourable personal circumstances. He accepted that Sandra's offending was, to some extent, explained by concern for her mother and to prevent shame being brought upon the family (ts 64 and 71). However, his Honour made the point that when the matter first came to Sandra's attention in 2003, her mother's fraud should have been disclosed and the deception should have been stopped. Instead, the deception continued and Sandra maintained it (ts 64).
147 His Honour found that there was little prospect that either appellant would reoffend and consequently concluded that personal deterrence was not a significant sentencing consideration. However, he was of the view that general deterrence was a particularly important factor in sentencing for offences of this nature. He observed that offences of the kind committed by the appellants were prevalent and difficult to detect. He said that such offences undermined the integrity of the social security system. He observed that the system relied upon the honesty of those in it (ts 67).
148 In the context of emphasising the importance of general deterrence, his Honour said:
The penalties imposed must serve the purpose of deterrence in order to reflect the real concern about the protection of revenue and the integrity of that social security system.
[People] will need to know that if they've cheated a system as you have over many years, you'll be discovered, that you'll be brought to account and when you are, notwithstanding that you might now be much older and less fortunate than you were when you first committed these offences, you are going to be punished for your wrongful conduct (ts 68).
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149 In his sentencing submissions, counsel for Maria recognised that anything less than a sentence of imprisonment would be inadequate (AB 148). It was submitted on her behalf that, having regard to the mitigating factors, in particular her health and age, she ought to be released immediately on the giving of a recognisance release order pursuant to s 20(1)(b) of the Crimes Act. His Honour declined to take that course. He concluded that, due to the serious nature of the offending, such a 'merciful' disposition was inappropriate (ts 72).
150 His Honour expressly took into account the totality principle in setting the head term to be served by Maria. By reason of this factor, he reduced the sentence he would have imposed on count 2. In doing so, he said:
I consider the total criminality warrants a total effective sentence of 3 years. Given your age and health and background, I am satisfied that you will have a reasonable expectation of a useful life after release and such sentence would not be crushing.
Accordingly, I direct that in respect of - for the purposes of totality, that the sentence in relation to count 2 - … of 2 years will be reduced to 1 year and 6 months, but I direct that it be served cumulatively on the sentence in count 1 (ts 71).
- In fixing the minimum term of 1 year in respect of Maria, his Honour said that he had regard to her age, health (including her psychological state) and 'the circumstances in which the offending took place' (ts 73).
151 In respect of Sandra, his Honour regarded count 3 as the most serious of the offences committed by her. In regard to the question of totality, his Honour said:
I consider that your total criminality is reflected in a sentence of imprisonment of 2 years (ts 71).
- He achieved this by ordering the sentences on counts 3 and 4 be served concurrently.
152 As in the case of her mother, his Honour concluded that the seriousness of Sandra's offending was such that the only appropriate sentence was a term of imprisonment to be served immediately. His Honour set a non-parole period for Sandra of 1 year.
153 His Honour made some reference to the question of parity. He did so in the context of the head sentences that were imposed upon the appellants. He said:
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- I do not believe that there is any problem with parity insofar as I consider the personal circumstances and the circumstances in which Sandra de Faria carried out her acts as the daughter of her mother in circumstances where she was then duty bound or felt morally bound to prevent the shame on the family provides some explanation for her behaviour (ts 71).
154 As I understand his Honour, he was conveying that the circumstances of Sandra's offending were such as to justify a head sentence less than that imposed upon her mother.
The appellants' submissions
155 Ms Lonsdale, on behalf of Maria, did not challenge the length of the individual sentences imposed by his Honour. Her essential points were that his Honour erred in accumulating the sentences because they formed part of the same transaction. The second point made by Ms Lonsdale was that, in light of Maria's pleas of guilty, remorse, prior good character, age, ill health, the ill health of her husband and the full reparation which was made, his Honour erred by not immediately ordering her release, pursuant to s 20(1)(b) of the Crimes Act. Alternatively, having regard to Dr Oldham's report and Mr de Faria's life expectancy, the custodial period of Maria's sentence should be reduced.
156 Mr Troy, on behalf of Sandra, submitted that the minimum term imposed upon his client breached the parity principle because, despite the differences in their relative criminality, each appellant was sentenced to the same custodial period. Mr Troy emphasised that Sandra's role as an aider was not as serious as that of her mother and that Sandra's offending, in contrast to Maria's, was not motivated by greed.
157 It was also submitted on Sandra's behalf that his Honour erred by not ordering Sandra's immediate release, pursuant to s 20(1)(b) of the Crimes Act, and that the total effective sentence, particularly the minimum term, was manifestly excessive having regard to all of the circumstances, including the ill health of her father.
Legal principles
158 These appeals must be decided in the light of the well-known general principles applicable to appeals against sentence. These principles were succinctly and accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is unnecessary for me to repeat what their Honours said.
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159 With respect to social security offending, the relevant principles are well established. Offences of this type are prevalent, relatively easy to commit and often difficult to detect. They have the tendency to undermine the integrity of the social security system. In cases involving sustained and deliberate fraud, general deterrence is a very important factor. In such cases, immediate imprisonment is the ordinary disposition, although each case must be decided on its own facts. See Nunn v Kinnon (1991) 4 WAR 459; R v Rossi (1988) 4 WAR 463; Kovacevic v Mills [2000] SASC 106; (2000) 111 A Crim R 131; Ralph v Nawrojee [2003] WASCA 5; Norton v The Queen [2003] WASCA 86; Payne v The Queen [2010] WASCA 177. As was pointed out in Kovacevic v Mills:
Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served. [43]
Merit of Maria's appeal
160 The offences committed by Maria were undoubtedly serious. They were committed over a long period of time and resulted in a substantial overpayment. She applied for, and obtained, two pensions, each time falsely claiming that she was not employed. Despite three data matches, she did not desist in her fraudulent behaviour. Although she did not apply for nor obtain benefits in a false name, she was able to avoid detection, in part, by taking advantage of the fact that she was employed under a different name. The learned sentence judge's unchallenged finding was that the offending was primarily motivated by greed.
161 There were mitigating circumstances, being Maria's early pleas of guilty, her remorse, the making of reparation, her age and ill health, and the ill health of her husband (about which I will say something more shortly). These matters were recognised by his Honour. There was evidence of the appellant's good standing in the community. However, it is hard to see how that could provide much mitigation given the sustained nature of the offending. It must be accepted that she is unlikely to reoffend.
162 It is apparent from his Honour's sentencing remarks that he was well aware that he could not impose an immediate term of imprisonment unless it was the only appropriate sentence.
163 Notwithstanding the mitigating factors, having regard to the serious and sustained nature of the offending and the need to provide general
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- deterrence, his Honour was correct to impose an immediate term of imprisonment. On the facts and circumstances of this case, no other type of sentence was appropriate. Ground 1 must fail.
164 Ground 2 is a complaint that his Honour did not give sufficient mitigatory weight to the appellant's age. It is not argued that he gave no weight to this factor. The submission was that he should have given it more weight. The appellant sought to support this submission by pointing to the following portions from his Honour's sentencing remarks:
… the fact that you now are in that physical state when you arrived for court to be sentenced for these offendings [sic] occurs as a result of your own conduct … That you now appear before me aged 69 is a consequence of you continuing to perpetrate a fraud for 11 years, not as a consequence of anything else … It might be fairly said that your cry for merciful disposition comes too late. The delay was caused by you perpetrating the fraud over a period of time (ts 68).
165 There are several points to be made in answer to this ground. First, the ground is, in truth, an allegation of a weighting area. This court has said on numerous occasions that a weighting error only gives rise to an appellable error if it amounts to a failure to exercise the discretion entrusted to the court. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which justifies appellate intervention: Vagh v The State of Western Australia [2007] WASCA 17 [76].
166 Second, when his Honour's sentencing remarks are read as a whole, his Honour plainly regarded the appellant's age as mitigatory.
167 Finally, the impugned passages of his Honour's sentencing remarks have been taken out of context. The full passage from which the impugned comments were taken is as follows:
The penalties imposed must serve the purpose of deterrence in order to reflect the real concern about the protection of revenue and the integrity of that social security system.
It will need to know [sic] that if they've cheated a system as you have over many years, you'll be discovered, that you'll be brought to account and when you are, notwithstanding that you might now be much older and less fortunate than you were when you first committed these offences, you are going to be punished for your wrongful conduct.
I note in the course of submissions, it's suggested that I should be merciful because now, particularly you, Maria, are now in poorer health than you have been in the past. One would suggest that your health has seemingly
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- not been that significantly affected insofar as you were able to maintain employment in two jobs up until at least 2008. It seems to be of more recent origin.
That said, the fact that you now are in that physical state when you arrived for court to be sentenced for these offendings [sic] occurs as a result of your conduct, that is to say, that when this fraud was first detected in 2003 you perpetuated it by you continuing working and not disclosing the truth and you, Sandra, telling the lie to enable it to occur.
Furthermore, in 2006 when you changed the age pension, Maria de Faria, you again perpetuated the lie that continued on. That you now appear before me aged 69 is a consequence of you continuing to perpetrate a fraud for 11 years, not as a consequence of anything otherwise.
It was by your deliberate decision and to deceive the State and the Commonwealth that you put beyond compassionate and merciful resolution of the matter. It might be fairly said that your cry for merciful disposition comes too late (ts 68).
168 In context, his Honour was making the point that general deterrence was still required when serious offending occurs over many years into old age and that a merciful disposition (in this case, immediate release) may not be appropriate. While arguably his Honour may have expressed himself with greater precision, what he said is, in substance, consistent with what was said by this court in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539.
169 I would not give leave to appeal in respect of ground 2.
170 It is convenient to turn to ground 4. In effect, this is an allegation that his Honour infringed the so-called one transaction rule. The one transaction rule and the totality principle are linked. The nature and scope of each is well known and well understood. As to the one transaction principle, see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28], and as to the totality principle, see Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
171 The one transaction is a rule of thumb only, to the effect that concurrent sentences may well be imposed in respect of multiple offences which occur in a continuing episode of offending. However, wholly concurrent sentences may not reflect the total criminality of the offending and may not be appropriate. Put another way, the so-called rule may be displaced by considerations of totality: Morris v The State of Western Australia [2011] WASCA 47 [10] and Ho v The State of Western Australia [2011] WASCA 108 [16].
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172 At first instance, the respondent submitted that concurrent sentences may be imposed. His Honour did not take this approach, but it is clear that the approach he took was informed by considerations of totality. After deciding the appropriate individual sentences for the offences, he turned his mind to totality and imposed a total effective sentence which, in his view, reflected Maria's overall criminality, having regard to all relevant circumstances including those personal to her. His Honour did not err in his approach which was consistent with sentencing principles: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.
173 The question remains whether the total effective sentence breached the totality principle. In particular, did the total effective sentence bear a proper relationship to Maria's overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to her personally?
174 In considering this question, it is relevant for the purpose of ensuring broad consistency to have regard to other cases decided here and elsewhere in Australia. Of course, no two cases are the same and the sentence in each case must be tailored to its own facts and circumstances. Sentences imposed in other cases do not mark the point beyond or below which no sentence can properly pass: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].
175 The parties, in their written submissions and in schedules provided to this court after the hearing of this appeal, referred to a large number of sentencing decisions concerning dishonesty in connection with the social security system. It is unnecessary to refer to them by citation.
176 There is no tariff for this kind of offending. This is because the circumstances of the offences and the offenders vary widely. The individual circumstances of some offenders are often sad and even tragic. Yet, in cases of prolonged and serious offending, substantial terms of immediate imprisonment have been imposed even where the offenders have been old, ill or have dependent children.
177 Upon my analysis of the cases, the total effective sentence imposed upon Maria, although substantial, was not inconsistent with the range of sentences customarily imposed.
178 I will not repeat what I have already said about the circumstances of the offending or Maria's subjective circumstances. I am not persuaded
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- that the total effective sentence imposed by his Honour infringed the totality principle.
179 Ground 4 fails.
180 I will now turn to ground 3. I have already said that his Honour took into account Mr de Faria's ill health. The information before his Honour did not include an estimate as to Mr de Faria's life expectancy, although his Honour would have inferred that it was limited.
181 This court has been provided with somewhat more precise information about this issue, although, it must be said, the information that has been provided was not up to date as at the hearing of the appeal.
182 There is a significant risk that Mr de Faria may not survive one year, that is, one year from the date of Dr Oldham's report, 26 November 2012. If the sentence imposed by his Honour is not reduced, Maria cannot be released on the recognisance release order until about 28 September 2013.
183 This is not one of those exceptional cases where the impact of an offender's incarceration upon a family member is a mitigating factor. The evidence is that Mr de Faria is being well cared for in the nursing home in which he presently resides. However, despite the imperfect nature of the evidence before this court, I am satisfied that there is a real risk that Mr de Faria may not survive the period Maria must serve in custody before being eligible for release. It is not disputed that Maria has been a particularly devoted wife for over 50 years and, along with Sandra, dutifully looked after him until his health deteriorated to the point where she was unable to continue to do so. The psychological evidence was to the effect that her incarceration and consequent separation from Mr de Faria would cause her great hardship.
184 In my opinion, it would be inhumane to deprive Maria of the opportunity to be with her husband in what may well be the final period of his life and that this court having received information that was not available to his Honour should intervene. Bearing in mind that Maria has already served a significant portion of the custodial part of her sentence, I have come to the view that, as an act of mercy, it is appropriate to vary the sentence imposed upon her by reducing that portion of the sentence which she must serve in custody from 12 months to 7 months.
185 I wish to make these additional comments. I regard the present case as wholly exceptional. It is a sad fact that persons sentenced to immediate imprisonment may, while they are serving that term, have to endure the
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- loss of those near to them. Where this occurs, it is a matter for the prison authorities to manage.
186 Ground 3 is upheld.
Merit of Sandra's appeal
187 Were it not for considerations of mercy, I would have dismissed Sandra's appeal.
188 I will deal first with grounds 2 and 3 of her appeal. I will do so initially without reference to Mr de Faria's ill health.
189 I accept that Sandra's criminality was less than her mother's. By the time Sandra became involved, Maria had embarked upon her fraudulent behaviour and had already received a substantial sum of money because of it.
190 Nevertheless, Sandra's conduct involved significant criminality. Her persistent and determined deceptions enabled her mother's fraudulent behaviour to continue for more than five years. Rather than act to stop what was occurring, Sandra facilitated it. Although she did not derive any financial gain from her conduct, her mother did.
191 The letter she sent to Centrelink on 13 December 2010 downplayed the offending committed by Maria and shows that Sandra did not have a proper appreciation of the wrongfulness of defrauding Centrelink.
192 Against the seriousness of Sandra's offending must be weighed the substantial mitigating factors that were relevant to her, including her pleas of guilty, her remorse, reparation, the likely loss of her real estate representative's licence and her good character.
193 His Honour properly considered whether to release Sandra pursuant to s 20(1)(b) of the Crimes Act. In the end, he came to the conclusion that Sandra's offending was too serious and the need for general deterrence was such that the only appropriate penalty was a term of immediate imprisonment. In my opinion, his Honour did not err in that conclusion.
194 Nor were the sentences manifestly excessive. Mr Troy did not argue that the individual sentences imposed upon Sandra were manifestly excessive. Rather, his focus was on the total overall sentence, which he submitted was too long. His argument was, in effect, that the total overall sentence breached the totality principle.
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195 In my opinion, it did not. Sandra's criminality extended over a period of years and involved multiple acts of deception. Having regard to Sandra's overall criminality and to all of the circumstances of her case, including those personal to her, the sentence did not infringe the totality principle.
196 However, having regard to the information before this court in respect of Mr de Faria's health, I have been persuaded that, as an act of mercy, the period that Sandra must serve in custody should, as with her mother, be reduced from 12 months to 7 months. I have come to this conclusion in Sandra's case because the evidence before his Honour was that Sandra had been a very dutiful daughter and had, along with her mother, cared for Mr de Faria until he was admitted to the nursing home. As with Maria, it would, in my opinion, be inhumane to deprive Sandra of the opportunity to be with her father in the final period of his life.
197 I would not grant leave in respect of ground 2. I would uphold ground 3 in light of the additional evidence of Dr Oldham.
198 Ground 1 of Sandra's appeal alleges a breach of the parity principle. Mr Troy submitted that Sandra had a justifiable sense of grievance because she received the same custodial period as her mother. Mr Troy submitted that Sandra's custodial period should have been less because her criminality was less than Maria's.
199 In Barry v The State of Western Australia [2012] WASCA 175, I said this about the parity principle:
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 609 - 610 (Gibbs CJ).
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents: MGM v The State of Western Australia [2012] WASCA 24 [43] (Mazza JA, McLure P & Buss JA agreeing) [55] - [57].
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200 As I have said, Maria's criminality was greater than Sandra's. However, Maria's personal circumstances were different. Maria is older and in poor health. Age and health were not relevant factors in Sandra's case.
201 Having regard to the differences in the cases, I am not persuaded that there has been an infringement of the parity principle as alleged.
202 Ground 1 fails.
Conclusion and orders
203 In each appeal, as an act of mercy, I would vary the sentence imposed by reducing that portion of the sentence to be served in custody from 12 months to 7 months. The sentences should not otherwise be interfered with.
204 In respect of Maria's appeal, CACR 236 of 2012, I would make the following orders:
1. The application to adduce additional evidence is granted.
2. Leave to appeal on ground 2 is refused.
3. Leave to appeal on ground 3 is granted.
4. The appeal is allowed.
5. The orders made by Birmingham DCJ stand, save that the recognisance release order be varied so that the appellant is released after serving 7 months' imprisonment.
205 In respect of Sandra's appeal, CACR 232 of 2012, I would make the following orders:
1. Leave to appeal on ground 2 is refused.
2. The appeal is allowed.
3. The orders made by Birmingham DCJ stand, save that the recognisance release order be varied so that the appellant is released after serving 7 months' imprisonment.
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