Director of Public Prosecutions (Cth) v Andrea Clare Golic
[2014] VSCA 355
•8 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0228
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) | Appellant |
| v | |
| ANDREA CLARE GOLIC | Respondent |
S APCR 2014 0230
| DIRECTOR OF PUBLIC PROSECUTIONS (Vic) | Appellant |
| v | |
| ANDREA CLARE GOLIC | Respondent |
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| JUDGES: | NEAVE, WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 December 2014 |
| DATE OF JUDGMENT: | 8 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 355 |
| JUDGMENT APPEALED FROM: | Commonwealth Director of Public Prosecutions v Golic (Unreported, County Court, Bendigo, Judge Dean, 19 September 2014) |
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CRIMINAL LAW – Sentence – Whether sentencing reasons affected by specific error – Whether sentence manifestly excessive – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| Appellants (DPP Cth & Vic) | Mr L Crowley | Commonwealth Director of Public Prosecutions |
| Respondent | Mr P F Tehan QC with Ms C Boston | Amad & Amad |
NEAVE JA
WHELAN JA
BEACH JA:
On 16 September 2014, the respondent, who is now aged 31, pleaded guilty to one charge of obtaining a financial advantage by deception and one charge of attempting to obtain a financial advantage by deception, both of which are offences under s 134.2 (1) of the Criminal Code Act 1995 (Cth).[1] She also pleaded guilty to a charge of attempting to obtain a financial advantage by deception under Crimes Act 1958, s 82(1). The sentences imposed for the offences were as follows:
[1]Section 11.1(1) of the Criminal Code Act 1995 (Cth) operates to make the respondent responsible for attempting to obtain a financial advantage by deception contrary to s 134.2(1).
Charge on Indictment Offence Maximum Sentence Cumulation 1 Obtaining a financial advantage by deception
Criminal Code (Cth) s134.2(1)10 years 2 years N/A - Sentence commenced 19 September 2014 2 Attempt to obtain a financial advantage by deception
Criminal Code (Cth) s134.2(1)10 years 4 months N/A - Sentence commenced 19 September 2014 3 Obtaining a financial advantage by deception
Crimes Act 1958 s 82(1)10 years 2 year CCO Order; 80 hours unpaid community work, supervision, mental health assessment and treatment, attend courses for gambling addiction as directed. N/A Total Effective Sentence: 2 years Non-Parole Period: In relation to charges 1 and 2 the respondent was released forthwith on a recognizance release order in the sum of $500 to be of good behaviour for 2 years Pre-sentence Detention Declared: Nil 6AAA Statement: 3 years imprisonment with a non-parole period of 12 months Other orders:
- Repatriation Order of $199,875.35 to the Commonwealth of Australia, pursuant to s 21B Crimes Act 1914 (Cth)
- Compensation Order of $42,723.55 to Bupa Pty Ltd pursuant to s 86 of the Sentencing Act 1991
Both the Victorian Director of Public Prosecutions and the Commonwealth Director have appealed against the sentences so imposed. The grounds of appeal, on which they rely, are as follows:
1.The sentencing judge erred in finding that the respondent’s moral culpability was substantially moderated by her mental illness.
2.The sentencing judge erred in finding that imprisonment would compound the respondent’s mental illness and involve a significant degree of hardship for the respondent than would otherwise be the case.
3.The sentencing judge erred in finding that the respondent’s case was an ‘exceptional case’ which did not require the respondent to spend any time in custody.
4.(Applicable only to the Commonwealth appeal S APCR 2014 0228)
The order on counts 1 and 2 that the respondent by released forthwith on recognizance to be of good behaviour for two years is manifestly inadequate.5.(Applicable only to the Victorian appeal S APCR 2014 0230)
The sentence imposed on count 3 is manifestly inadequate.
Particulars:
In respect of counts 1 and 2, the sentencing judge erred as he:
a.failed to adequately reflect the seriousness of the offending;
b.failed to adequately reflect the importance of general and specific deterrence;
c.gave too much weight to the moderation of moral culpability;
d.gave too much weight to the likelihood of hardship of imprisonment that may be caused by the respondent’s mental illness; and
e.gave too much weight to the respondent’s subjective case.
In respect of count 3 the sentencing judge erred as he:
1.failed to adequately reflect the seriousness of the offending;
2.failed to adequately reflect the importance of general and specific deterrence;
3.gave too much weight to the moderation of moral culpability;
4.gave too much weight to the likelihood of hardship of imprisonment that may be caused by the respondent’s mental illness; and
5.gave too much weight to the respondent’s subjective case.
The circumstances of the offending and the offender
The offences occurred over a 14 month period commencing on 2 March 2012 and ending on 9 May 2013.[2]
[2]The first Commonwealth charge related to the period between 2 March 2012 and 30 November 2012, whilst the second Commonwealth charge related to the period between 1 December 2012 and 9 May 2013. The Victorian charge was for conduct during the period 2 March 2012 to 3 May 2013.
The respondent, who had previously had neurosurgery in the circumstances described below, began the offending to feed her gambling addiction. Either personally, or using her mother as an agent, she lodged 34 false invoices with Medicare, at different Medicare offices, which resulted in her obtaining rebates in the sum of $199,875.35 (charge 1).
She lodged two further false invoices in an attempt to obtain further rebates for $16,669.80 ( charge 2).
She also obtained $42,723.55 from her private health insurer BUPA Australia Pty Ltd (charge 3).
Her offending was detected when she attempted to make a claim at a Medicare office and it was recognised that she had made a similar claim at a different office on the previous day. On 12 September 2013, search warrants were executed at her home, and incriminating documents were found on her computer.
The respondent cooperated when she was interviewed by investigators, made full admissions about her conduct and pleaded guilty to the offences.
Although the offending involved a systematic and planned course of conduct, it was relatively unsophisticated. The respondent simply copied a genuine invoice relating to her earlier neurosurgery and used it as a template to create the false invoices, which he used to make her claims.
The offences occurred in the following circumstances.
When the respondent was in year 11 at school, she began to suffer from a depressive illness, accompanied by anxiety and an obsessive compulsive disorder. She began psychiatric treatment and was prescribed anti-depressants at that time. Over time, her dosage of the drug she was prescribed was increased to the maximum level. However she still suffers from depression and has been taking anti-depressants since she was in year 11.
In 2006, when the respondent was aged 23, she was diagnosed as having an inoperable brain tumour and told that she might live for a month, a year, or ten years. The respondent had previously dropped out of a course at RMIT university and at that time was working as a book keeper.
She was introduced to gambling by her colleagues at the accountancy firm where she worked, and developed a gambling addiction.
In May 2007, she went bankrupt, having declared significant debts. She resigned from work in late 2010, having previously had to take a considerable amount of sick leave from work because of severe headaches.
In late 2010, the respondent consulted a neurosurgeon in Sydney. On the basis of his advice, she decided that she would have neurosurgery for her brain tumour, although she was warned that the surgery involved considerable risks and that even if the tumour were removed she might suffer lasting adverse effects.
On 24 January 2011, she had the neurosurgery and made a complete recovery. However, following that operation, her gambling intensified. Ultimately she committed offences described above.
In June 2011, she began to receive treatment for her depression from psychiatrist, Dr George Anasson, and at the time she was sentenced, was on the maximum dose of Sertraline.[3]
[3]Sertraline is an antidepressant of the selective serotonin reuptake inhibitor (‘SSRI’) class.
Dr Anasson provided two reports which were tendered at the plea hearing. These indicated that the respondent:
·had a history of depression and anxiety since she was in year 11 and had been on anti-depressants since that time;
·described a sense of hopelessness following the diagnosis and had thoughts of self-harm and suicided. Her hopelessness had fuelled impulsive and risk taking behaviour;
·that despite the success of her surgery ‘she remained uncertain and overwhelmed by the notion of surviving into her adult years’;
·the respondent had initially deceived Dr Anasson about her gambling but had ultimately admitted that she had been gambling since her brain tumour diagnosis in 2006 and was deeply remorseful.
Dr Anasson said that for a number of years the respondent had:
[O]perated in her thoughts in a manner which can only be described as diminished responsibility. Her weighing up of the severity of alleged fraudulent activity is minimised and incongruent with her intellectual capacity, and noted developmental history of excellent conduct and compliance with her primary and secondary school periods. It seems that the diagnosis of benign but worsening and physically disabling brain tumour in an only child, in the Golic household saw perhaps a level of regressed behaviour within Andrea throughout the years particular between 2006 and 2011. In essence her newfound hope and lifting of what was in her own mind ‘a death sentence’ seemed like a stark and overwhelming reality in this lady. … However it seems clear that there are a number of enduring aspects to her relatedness to adults and personality style which are seemingly more consistent with those of an underdeveloped or regressed woman of her age.
In his second report, Dr Anasson said the respondent was attending Gamblers Anonymous and that:
Her attendance and commitment to this program has led to a more clear and responsible approach to managing the stress and sequelae of this intense gambling addiction. Additionally she has continued, up until recently, to attend university classes and has shown clear improvement both in her application and completion of tasks, throughout semester 1 and the early part of this semester in 2014.
The respondent also relied on a psychiatric report prepared by Dr Sullivan which indicated that she had a pathological gambling addiction, which had arisen in the circumstances described above. Dr Sullivan said that:
Her gambling has a compulsive, addictive quality and has resulted in dishonest behaviour in to further it: I am satisfied that Ms Golic describes a diagnosis of pathological gambling as set out in the International Classification of Diseases, 10th Revision (ICD-10).
In addition Ms Golic reports that for a number of years she has experienced lowered mood, preceding being charged and resulting in prescription of antidepressant medication. I think it likely that she suffers from a recurrent depressive disorder, mild-moderate in severity, as set out in the ICD-10. There are some overlapping anxiety spectrum features including skinpicking and obsessive-compulsive symptoms, but these would not in my opinion be sufficient to be recorded as a separate diagnosis, and are likely an element of her mood disorder.
Her personality structure is interesting and appears to have prominent avoidant and possible dependent traits. Her somewhat immature presentation and limited individuation from her parents accord with these personality traits. It is not clear that these would meet the threshold for a full diagnosis of anxious (avoidant) personality disorder but her presentation and longitudinal trajectory strongly support the likelihood these are clinically significant traits.
There is no indication of substance use disorder, psychotic illness or cognitive impairment. On the information available and the clinical presentation, there is no indication that brain surgery or the underlying condition has been associated with any specific cognitive deficits.
Ms Golic reports a strong association between the commencement of her gambling and the diagnosis of a brain tumour, although her gambling has persisted despite an apparently curative operation. She reports that she cannot get over having thought that she would die in young adult years. This is corroborated by her treating psychiatrist.
At the time of the alleged offending, it is likely that her gambling was in part perpetuated by its effects on mood and its association with avoidant personality traits. Pathological gambling is strongly associated with depression, and may be both cause and effect of mood disorder.
At the time of the offending I would regard Ms Golic’s depression to have reduced her capacity to think clearly or make calm and rational choices, in particular to think through the consequences of her behaviour, the likelihood of being detected and the effects on an accounting or business career of such charges. I think it likely that this impaired her judgment mildly. However there is no indication of obscured intent or disinhibition.
In the event of incarceration Ms Golic’s personality structure, naïveté and immaturity will render incarceration more burdensome: she will be vulnerable to targeting by others.
Appellants’ submissions
Under cover of grounds 1 and 2, the appellants argued that the sentences should be set aside because they were affected by specific error.
In relation to ground 1, it was submitted that the sentencing judge’s finding that the respondent’s moral culpability was ‘substantially moderated by’ her mental illness was not reasonably open on the evidence. Although the Crown had conceded during the plea-hearing that the principles in R v Verdins[4] were engaged, Dr Sullivan reported that the respondent’s judgement had only been mildly impaired. This was insufficient to support the judge’s conclusion that her moral culpability had been substantially reduced. Relying on Carroll v The Queen,[5] the appellants argued that there was no evidence establishing a clear causal link between the depression, the problem gambling and the offending. Although Dr Anasson had referred to the respondent’s ‘diminished responsibility’ that conclusion was primarily based on the history which Ms Golic had given him. Further, the offending began after the respondent had had her successful surgery and during a period in which she was receiving treatment for her depressive illness.
[4](2007) 16 VR 269.
[5][2011] VCA 150.
In support of ground 2, it was submitted that Dr Sullivan’s Report did not support his Honour’s finding that imprisonment would compound the respondent’s depressive illness and that imprisonment would involve a more significant degree of hardship for the respondent than would otherwise be the case.
It was argued that Dr Sullivan’s report had referred to aspects of the respondent’s personality structure and to her naiveté, rather than to any mental illness which would make her imprisonment more burdensome.
Under ground 3, it was submitted that there was no basis for his Honour’s conclusion that this was ‘an exceptional case’, which did not require the respondent to serve any time in custody having regard to her depression, and the circumstances in which she became addicted to gambling.
The mitigating factors, to which we have referred above, were insufficient to justify the sentences imposed, given the seriousness of the offending. It was submitted that this was ‘a serious systematic and sustained course of forgery and dishonesty perpetuated over a lengthy period, which required planning and execution.’
In oral submissions it was conceded that this was an aspect of the ground of manifest inadequacy.
It was argued that both the recognizance orders imposed in relation to charges 1 and 2 and the Community Corrections Order (‘CCO’), imposed on charge 3, were manifestly inadequate and that the respondent should have been required to serve a term of imprisonment. The judge had given too much weight to the respondent’s circumstances and insufficient weight to the objective criminality of the offences.
Respondent’s submissions
The respondent submitted that the findings made by the learned sentencing judge, that the respondent’s culpability was substantially moderated by her mental illness and that imprisonment would involve a significant degree of hardship, were open on the evidence.
His Honour had indicated in his reasons that the circumstances of the offending and the amount of money involved would ordinarily warrant incarceration because of the need for denunciation and general and specific deterrence, but it was open to his Honour to regard this as an exceptional case.
The factors which were said to make this case so unusual included: the respondent’s depression since she was a teenager, the fact that at the age of 23 she was diagnosed with an inoperable brain tumour, and her subsequent development of a gambling addiction.
Reliance was placed on the well-known statement in R v Osenkowski[6]which recognises that there must always be a place for the exercise of mercy and leniency on the part of the sentencing judge.
[6](1982) 30 SASR 212, 212-13.
The respondent further submitted that even if sentencing error were found to be established the court should nevertheless order that the appeal be dismissed in exercise of its residual discretion because of:
(a) the delay in charging and in the respondent having the opportunity to enter a plea of guilty;
(b) the respondent’s subsequent compliance with the conditions of her CCO; and
(c) the respondent’s continuing psychological fragility.
Conclusion
As we have said, the appellants relied on three alleged specific errors. Doubts have been expressed as to whether a specific error, standing alone, warrants the setting aside of a sentence in the absence of manifest inadequacy. In DPP (Cth) v Chatterton the court said that:
We accept, of course, that s 287 of the Criminal Procedure Act 2009, which confers a right of appeal against sentence upon the Victorian Director of Public Prosecutions (and derivatively, through the provisions of the Judiciary Act 1903 (Cth) upon the Commonwealth Director as well), is couched in the language of there being ‘an error in the sentence imposed’ and it being shown that a ‘different sentence should be imposed’.
However, the section also requires that the Director be satisfied that an appeal should be brought ‘in the public interest’. It is difficult to see how a specific error, which does not of itself constitute an error of principle, can ever, in the absence of manifest inadequacy, warrant setting aside the sentence originally imposed. There is no warrant, in the legislation, for this Court to ‘tinker’ with a sentence imposed below merely because the judge acted upon some erroneous view of the evidence. A good deal more must be shown before a Crown appeal can succeed.
In context, the ‘different sentence’ to which s 289 refers should, in our view, be understood as one which reflects the fact that the original sentence was manifestly, clearly, or plainly inadequate. …
…
There are a number of factors at play in a Director’s appeal which differentiate it from an appeal brought by an aggrieved offender.
This very issue was considered by this Court in Hudson v R. That case turned upon the interpretation of s 567A of the Crimes Act 1958, which was then the relevant provision governing Crown appeals against sentence. Of course, at that time, Crown appeals had to overcome the hurdle of double jeopardy, a task that now no longer need be pursued.
In Hudson, the Crown submitted that once specific error of any kind had been demonstrated (and it could be seen that the error was material) the sentencing discretion was automatically re-opened. That would mean that this Court would simply re-sentence afresh. It might lead to only a small adjustment of the original sentence. There would be no need to demonstrate that the sentence imposed was ‘manifestly inadequate’.
That submission was squarely rejected. The Court observed that even if the error complained of by the Crown was one of manifest inadequacy (or, in the case of specific error, an ‘error of principle’) the appeal could not succeed unless it possessed those qualities that warranted intervention on a Crown appeal. Self-evidently, a lesser error taken alone, could not justify any such intervention.
Of course, the relevant legislation has been amended since Hudson.
The question whether, absent manifest inadequacy, specific error, on its own, can be sufficient to allow a Director’s appeal, was considered by this Court in Director of Public Prosecutions v Bulfin. This was a major corporate fraud case where the Court considered the contention that in white collar crimes there should be a greater disparity than normal between the head sentence and the non-parole period. In rejecting this alleged sentencing principle, the Court commented on whether, on a Crown appeal, a court ought not to increase a prisoner’s sentence unless it took the view that the sentence originally imposed was manifestly inadequate.
Charles JA, in obiter, while not finally drawing any conclusion on the matter, commented that the reasoning of Callaway JA in R v Bolton and Barker, with which his Honour agreed, would tend strongly to that conclusion. In that case, Callaway JA, in considering the policy considerations that apply to re-sentencing on appeal, said the following:
It is nevertheless the duty of a court engaged in re-sentencing to form its own view and, if it takes the view that a heavier sentence is called for than that passed below, not to be deterred from imposing it if the earlier sentence was, in the words of the learned Chief Justice, ‘altogether inadequate or inappropriate’.[7]
[7]DPP (Cth) v Chatterton, [2014] VSCA 1, [80]–[81], [86]–[93].
Further, even if specific error does provide the basis for setting aside a sentence, in our opinion it cannot be established. The appellants’ parsing of the reports of Dr Anasson and Dr Sullivan had an air of unreality about it. In our view there was ample evidence before the judge to permit an inference that there was a link between the respondent’s depression, her development of a gambling addiction and the commission of the offences. In R v Grossi[8] Redlich JA (Vincent and Neave JJA agreeing) said that a gambling addiction will rarely be regarded as significantly reducing an offender’s moral culpability. However, as his Honour also recognised, the weight which should be attached to such an addiction will vary according to the circumstances of the case.[9] Moreover, as the appellants acknowledged, the judge was entitled to give some weight to the respondent’s mental illness, so that the complaint really amounts to one of manifest inadequacy.
[8](2008) 23 VR 500 (Citations omitted).
[9]Ibid 514
We would also reject ground 2.
Read in context, there was sufficient evidence that the respondent’s depression, for which she had been taking anti-depressants since she was a teenager would make prison more burdensome for her.
So far as ground 3 is concerned, we consider that the combination of circumstances which preceded the offending, was sufficient for his Honour to treat this as an unusual case, which justified the exercise of mercy, despite the sustained period over which the offending occurred and the amount of money acquired. In addition to the respondent’s depression, she was also entitled to rely on her previous good character, her guilty plea, remorse, the fact that she had begun attending Gamblers Anonymous after the offences were detected and her good prospects of rehabilitation. His Honour also noted that the respondent had resumed her tertiary education and that she hoped to become employed in the future, which would give her the opportunity to make reparation for the amounts she had obtained.
It is trite law that the ground of manifest inadequacy is difficult to make out. As has frequently been observed the inadequacy must be clear and egregious. The ground can only be sustained where the sentence is so disproportionate to the circumstances of the offending and the offender that it undermines public confidence in the sentencing process.
The argument that the sentence imposed on charge 3 was manifestly inadequate may well have been based on the assumption that a CCO does not have a punitive effect or is not an onerous sentencing disposition. Those assumptions are incorrect. A CCO can now be imposed for very serious offences. Further, the terms of the CCO imposed in this case imposed significant restrictions on the liberty of the offender.
While the sentences imposed in this case were lenient (and appropriately so given the respondent's background circumstance), we consider that the sentences were well within the range reasonably open to the sentencing judge.
Moreover, even if we are wrong in that view, we would in any case exercise our discretion against re-sentencing the respondent, for the reasons relied upon by her Counsel.
In particular, we note that Ms Golic has completed almost half of the work requirements imposed by the CCO and is satisfying the other conditions of that order.
We would therefore dismiss the appeal.
The orders of the Court are:
(a) the appeal be dismissed; and
(b) the respondent be granted an indemnity certificate pursuant to s 15 of the Appeals Costs Act 1998.
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