Director of Public Prosecutions (Cth) v Morrison
[2016] VCC 1622
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01008
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MONICA MARY MORRISON |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 11 November 2016 |
| DATE OF SENTENCE: | 18 November 2016 |
| CASE MAY BE CITED AS: | DPP (Cth) v Morrison |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1622 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – dishonestly obtain a financial advantage by deception from a Commonwealth entity
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic)
Cases Cited: R v Cameron & Anor (1993) 171 LSJS 303; R v Purden, NSWCCA (unreported) 27 March 1997; DPP (Cth) v Milne [2001] VSCA 93; R v Merrett, Piggott & Ferrari (2007) 14 VR 392; DPP v Leach (2003) 139 A Crim R 64; R v Iles [2009] VSCA 197; McGuiness v R [2008] NSWCCA 80
Sentence:Convicted and sentenced to 2 years and 6 months’ imprisonment. Recognisance Release Order to be released forthwith.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr P Darby | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Ms W Gibbons | Victoria Legal Aid |
HIS HONOUR:
1Monica Morrison is aged 71, having been born on 31 December 1945. She pleaded guilty on 11 November 2016, to one charge on a Commonwealth Indictment, which is given the County Court number for the purposes of our records, CR-16-01008, but which was signed by the Director on 17 August 2016.
2The one charge insofar as that Indictment is concerned is one of dishonestly obtain a financial advantage by deception from a Commonwealth entity. The entity in that instance is the Department of Human Services. The offence is against s134.2(1) of the Criminal Code Act 1995 (Cth).
3The seriousness of this offence is demonstrated by the fact that Parliament has prescribed a maximum penalty of ten years’ gaol.
4Exhibit A was tendered, which was the Prosecution Opening. It was accepted by Mr Moglia as representing the facts upon which I have to sentence Ms Morrison.
5The deceptions were multifarious and took place over a period of four-and-a-half years from 23 April 2010 to 5 October 2014. Those deceptions led to the payment of an aged pension. I am not certain whether it was full, but at any rate, to an aged pension to which she was not entitled based upon the incorrect information provided.
6That incorrect information was an under-declaration of the income she was receiving from her part-time employment at St John of God Healthcare in this city. That under-declaration occurred on 112 occasions throughout this period. That led to a payment during such period of $88,477.23 to which Ms Morrison was not entitled. The point made by Mr Moglia was that, essentially, equates to about a little over some $20,000 receipted per annum.
7It should be pointed out that during such period, that is the four-and-a-half years, she was earning income, as I have said, from St John of God Hospital. That income in total over the period was $219,207.00, which equates to about $1,873.00 gross a fortnight in her occupation as a nurse.
8Insofar as the sum outstanding to the Commonwealth is concerned, reparation has been made from Ms Morrison’s own resources in the sum of $6,998.18. She has entered into a reparation scheme with the Commonwealth and I am required to take that into account.
9One matter, which has not been clarified, is the issue as to her future work and income. It is quite clear that her professional standing, and her capacity to continue to act as a nurse, may well be subject to consideration by the relevant Board. That may impact upon her ability by way of the future to make reparation; however, I have nothing of any certainty in that regard. The only certainty one could make upon the conviction of such a serious offence, one presumes, as was put to me by Mr Moglia, is that the relevant Board responsible for the registration of nurses would at least take the matter into consideration.
10Ms Morrison comes before this Court without any priors whatsoever.
11There was no issue that the crime for which she is before this Court for sentence is a serious crime, not only demonstrated by way of the maximum penalty set by Parliament, but the fact that it has been so sustained over a period of four-and-a-half years, and involves the sum of $88,477.23, a not insubstantial sum.
12It is not as big as some but it is still a substantial sum, albeit I accept what Mr Moglia said about how it equates on a yearly basis.
13It was also accepted by both counsel that, given the authorities that were presented to this Court, and the experience of this Court, ordinarily a sentence for this type of sustained deception upon the Commonwealth, or at least part of such sentence, would be a period of immediate imprisonment. That is so because of the important need for general deterrence in a sentence of this type. Also, because we are dealing with such a large organisation, the problem of detection of these types of matters is one of ongoing difficulty for the Commonwealth.
14There is also the requirement for a sentence to effect circumstances whereby Commonwealth finances and Commonwealth services are protected, and there is also the issue of prevalence. All of those matters are referred to in the authorities and in like form were referred to before me.
15Indeed, this was the submission as put by the learned prosecutor, that there must be, in any sentence, be it a recognisance release order or be it a community correction order, a period of immediate imprisonment. Indeed, further, if there were to be a community correction order, the submission made this morning by Ms Darby was that it would be inappropriate if it did not contain a community work condition.
16Mr Challen took me through the provisions of s16A of the Crimes Act 1914 (Cth). He noted the genuine contrition and remorse that had been expressed and the repayment made from Ms Morrison’s own resources in this matter from April 2014, albeit strangely, in the circumstances of this case, that the under-declarations continued to be made until October 2014. I am not sure why; however, they seem to be consistent with the circumstances which led, initially, to the offending which I will come to.
17Mr Challen took me to a number of authorities. The first, of course, is R v Cameron & Anor (1993) 171 LSJS 303 [307], a determination of the South Australian Court of Appeal and, in particular, that of King CJ. Also the decision of R v Purden, NSWCCA, unreported, 27 March 1997. In addition was the determination of DPP (Cth) v Milne [2001] VSCA 93, which is more often referred to in these types of cases.
18The important comment insofar as Milne is concerned in regard to Cameron is set out by the President at paragraph 16. Having quoted the reference that I have referred to in Cameron of King CJ, the present President said:
“As I have said, I agree with those remarks. An actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate cheating of the social welfare system because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose for imposing sentence in such cases, namely general deterrence. But that is not to say that there will not be the exceptional case, where such factors exist.”
19The facts, of course, in Milne were dramatically of more grave culpability than Ms Morrison's, involving a period of deception over 20 years and involving a much larger sum, more than double what is involved in this case.
20I have also looked closely at the comparative table given to me by Mr Challen and also I note Mr Challen's submission that in that comparative table, no person was given a sentence which did not involve immediate imprisonment, subject, of course, to the case of McGuiness v R [2008] NSWCCA, albeit that it should be noted that between the sentence and the appeal, a period of four months’ gaol had been served.
21There were particular mitigatory matters leading to a non-immediate imprisonment sentence in McGuiness, but equally, it was a very unsophisticated deception, not dissimilar to what I am dealing with here.
22In the particular circumstances, after having analysed the circumstances and the authorities, it was certainly the submission of the learned prosecutor that whichever sentence was imposed, be it an immediate sentence with a recognisance release or a community correction order, all of which sentences are possible, any sentence must involve a period of immediate gaol.
23That takes me then to the plea conducted by Mr Moglia. There was no issue, as I have already said, with this being a serious offence, given the penalty. It was submitted that the background to this, to the entering into this matter, can be sheeted home to the fact that Ms Morrison was out of work. She was a person, unfortunately, who apparently had allowed her life to be conducted whereby she was beset by bankcard issues, and, of course, when unemployment came upon her because of her health issues, she found herself in a position, to use Mr Moglia's words, where she had no room to move.
24That does not mean, of course, it justifies the move she made. As I said to Mr Moglia, she could have bankrupted herself. However, the understanding of the background to this criminality is the fact that she was ill and required bilateral hip operations in 2009. There was no issue with that, but being out of work and being in financial distress, she failed to fully notify her earnings, and as such, got herself into this position.
25As I have said, it persisted for the next four-and-a-half years. It was submitted by Mr Moglia, because of the limited sum involved over such period and the fact that this was not sophisticated, to use his words, there must obviously have been an intersection in due course. It is somewhat difficult to understand how a person with Ms Morrison’s background continued in these circumstances as, not only was it unsophisticated, but as I say, there must ultimately have been an intersection, even given the size of the Commonwealth system.
26Ms Morrison was receiving these payments while at the same time receiving her income from the hospital in her own name, whereby such figures were being lodged with the Commonwealth Taxation Department. Albeit that it took until 2013, or early 2014 I think, when a repayment was entered into, these matters had to come about by way of detection because her wages being received from the hospital were fully declared.
27Exhibit 2 was the report of Ms Carla Lechner, clinical psychologist. That report was dated 6 September 2016. She notes, at page 2, that Ms Morrison is before the Court, as before her, deeply ashamed of her actions. She concluded the risk of re-offending was minimal and she noted the impact of a jail term upon Ms Morrison. In particular at page 4, she noted the facts that I have simply referred to, that Ms Morrison had previously lived beyond her means by way of lifestyle, and when she came upon these circumstances of illness, got herself into this position.
28It was noted that due to those lifestyle matters, Ms Morrison had returned to work part-time in January 2010, initially six to ten hours a week, then that was gradually increased to 19 hours a week. Apparently she used, as stated to Ms Lechner, the additional income to pay those everyday expenses.
29When contacted by Centrelink, as I have said, she entered into a repayment scheme, but for some reason continued to under-report. It was put by Mr Moglia that she was concerned that she would be somehow admitting to the deceptions. As I say, it is all a bit difficult to comprehend and may well date back to circumstances whereby she got herself initially involved. At any rate, she stated to Ms Lechner, “I panicked, I felt I couldn’t suddenly put my income up”, hence the under-reporting continued.
30I think, in assessing the criminality in this matter, it is important to take into account the comments under “Offending behaviour” in the Lechner report. On page 5 the following was said:
“Ms Morrison acknowledges her role in the above offences. Ms. Morrison found it very hard to explain her actions. She stated ‘I don’t know why I did it the first time … and I just kept doing it to supplement my income. … I knew I was under-reporting, I did it once and I kept doing it. … I’m paying it back now, about $80 per fortnight.’ Ms. Morrison stated that she was under some financial pressure during the year that she had her hip operations and was not able to work, as outlined above.
Ms. Morrison stated that she ‘panicked’ when contacted by Centrelink about the over-payment and continued to misrepresent her income. Ms. Morrison stated that she is ‘shocked that I did it and remorseful. … I’m very fearful of going to jail, not being able to support myself …[and the fact that this criminality, to use her words, will ‘destroy’ her].”
31Consistent with that issue, she has demonstrated an Adjustment Disorder with Depression, reactive to her concerns about these proceedings and the fact of being imprisoned.
32As is demonstrated by all of the materials before me, her history is characterised, as stated by Ms Lechner in the summary, by steady employment and stable social networks. She noted that she has expressed regret and shame for her actions and Ms Lechner also noted that there did not appear to be any risk of re-offending. She is a person of high standing in the community who had given immense service to the community throughout her nursing career and intends to continue working as long as possible.
33As I say, this criminality was very unsophisticated, if not naïve, deception which was clearly going to be detected. As is shown, since detection, she has agreed to make repayments.
34The matters put by Mr Moglia were that this Court should be loath to sentence a person of the age of 71 to immediate jail. As I said to him, that is hardly an issue where it is appropriate and necessary. However, he submitted, upon the totality of the circumstances in this case, that such an order should not be made.
35Mr Moglia stressed 65 years of unblemished character in a stressful life, in particular whereby Ms Morrison has carried out the role of a theatre nurse, where she has cared for her family and been involved in voluntary organisations. She has also had no issues about disclosing these matters to her fellow workers and has gone ahead and done that.
36The issue of delay was also raised. The matter of delay is not always of great portent in these cases as it is to be expected, because such investigations take some time. However, the point appropriately made by Mr Moglia was that, in this instance, from the time of detection, it took two years for the charge to be then effected. In paragraph 13 of his submission, which I accept as the appropriate law, he submitted that, while the delay was discovered in 2014, it was highly extraordinary that two years plus then passed before she is now being dealt with. He submitted that it was not insignificant for someone of Ms Morrison's age and character, and as a matter of fairness, it counts as punishment and permits the Court to see such in that light, given the extent of her rehabilitation. He quoted in that regard the case of R v Merrett, Piggott & Ferrari (2007) 14 VR 392 [35].
37Insofar as her character was concerned, Mr Moglia tendered as exhibit 3 a series of personal character references. They were all exhibited and summarised in the matters put to the Court. There were ten such exhibits. They became exhibit 3, and there are details of them and the document that was tendered by Victoria Legal Aid in the matter. They involve both family members, friends and, in particular, workmates.
38As I said, her work is particularly acknowledged by the associate nurse manager, Ms Gabbin, her fellow nurse, a registered nurse, a Ms Park, and a number of personal friends, all of whom talk of her prior good character. Also, her philanthropic actions in the community, and in particular in the statement of Maureen Lamar, the manner in which she has supported her own family.
39On the day of the plea there was also a further statement handed to the Court from Father Dillon, the local parish priest of St Mary of the Angels Parish in Geelong, a person well-known in this community, and indeed, in the whole of Melbourne, given the steps he has taken and the manner in which he stood up for victims in regard to religious sexual abuse. His statement talks of his knowing Ms Morrison for a period of five years, his observations of her and her work around the parish, in particular with those who have been ill, and her caring for her sister, a resident at the local Nazareth House.
40Father Dillon notes that she is a highly ethical and conscientious citizen and he states he is surprised at the charges which bring her before the Court. He notes that she has expressed her shame and regret, and he uses the term which may well be an exact term for the somewhat difficult aspects of this criminality to understand, the matters that I have already referred to, being its unsophistication and the circumstances whereby, not only it began, but it continued. Father Dillon describes such, to use his words, as allowing herself to get into some kind of “moral quicksand”.
41Father Dillon states that the Court appearance and the reasons for it have shamed her deeply especially, given that in other areas of her life, she is known as an ethical person.
42Given all of those matters put to the Court, Mr Moglia sought, while understanding the need for general deterrence and punishment and an appropriate sentence based on the principle of parsimony, in the circumstances in this case a non-immediate imprisonment sentence based upon her age, prior good character, co-operation, the impact of delay and a true understanding how this crime came about.
43As I say, the learned prosecutor, in argument, maintained that there was only one appropriate sentence, be it involving a community correction order, or recognisance release, but part of any sentence must be immediate imprisonment. I take all the matters into account that were put to me by the learned prosecutor. As I say, he maintained a period of immediate gaol was necessary.
44This has not been an easy determination. I have determined, despite consideration, that a community correction order is not appropriate in this matter.
45There is no doubt that a conviction must be recorded and a gaol term imposed. The real issue is whether a recognisance release order should be made at the same time.
46In considering these matters I am not unmindful of the comments made by Redlich JA in R v Iles [2009] SCA 197, referred to by Mr Moglia, in particular paragraph 32 when talking about old age and considerations of the Court. As I said to Mr Moglia the issue of old age is a matter of relativity, but in any case Redlich JA said:
“In the present case, old age was central to, though not determinative of, the quantum of sentence to be imposed. While giving due attention to the appellant's age, confidence in the administration of justice had to be maintained by imposing a sentence which reflected the gravity of the crime. That is to say, the age of an appellant in that case did not permit the imposition of an inappropriate sentence. Rather, it was one factor to be taken into account in determining what justice required”.
47He further went on in the next paragraph:
“The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy…”.
48I have determined that an immediate release pursuant to s.19AC should be pronounced in this case. I do so because of the totality of the circumstances and not in any way to undermine the gravity of the crimes, which I have been at pains to indicate.
49The combination of the facts in this case seem to me to be as follows. Firstly, the age of Ms Morrison at 71, and the moral quicksand which somehow led to a person at the age of some 65 years, who had led a blameless life, being involved in this type of criminality. I have no doubt that it began because of financial distress, brought about by the manner in which she conducted her finances. However, the hip operation has led to these circumstances, and as described by Father Dillon, placed her in a position of moral quicksand.
50The somewhat inconsistent behaviours whereby she was detected and arranged repayments but maintained the under-reporting, demonstrate that this was an unsophisticated and naïve circumstance. Indeed, she continued to receive, during the period of criminality, her wage in her own name. There was no hiding of these circumstances. Given such, there was certain to have been, ultimately, an intersection of her receipt of wages being reported to the Taxation Department, at the same time she continued to receive these benefits.
51Her prior good character must be taken into account, also, her contribution to society as a nurse. The significant testimonials that have been made on her behalf, to which I have referred specifically, demonstrate that this criminality is totally out of character. Those testimonials are of substance, and in my view, of great impact. They come from, not only her own professional colleagues, but friends and companions.
52There is no doubt that, on all the material, this criminality is totally out of character.
53I take into account her plea of guilty, the reparation arrangements that she has entered into, the confidence as expressed by the professionals, and indeed by the referees, as to her being able to effect rehabilitation.
54As I say, in making that determination, I am not unmindful of the comments that Redlich JA made in Iles. In the end, I think this is one of those unique cases where it is appropriate to exercise mercy, in the circumstances, because of the totality of the matters that I have detailed.
55I also refer in this instance to the comments made by Eames JA in DPP v Leach (2003) 139 A Crim R 64, in particular at [74]. In that case the question of the issue of mercy was considered by the Court of Appeal. Eames JA referred to the manner in which the Court of Appeal approaches the exercise by a sentencing Judge of such:
“…should not devalue or deny the right of a sentencing Judge to act mercifully in a case where it seems to the Judge to be an instance where an opportunity for reformation of an offender should be grasped. That, after all, maybe a decision which rebounds very much to the benefit of the community.”
56That paragraph, it seems to me, has a large impact here, especially in regard to a person who has lived her life in the way that Ms Morrison has. I find that this is a case deserving of appropriate mercy.
57You can stand up please, Ms Morrison.
58You will be convicted on this offence and you will sentenced to a period of imprisonment of two and a half years.
59Pursuant to the provisions of s.19AC of the Crimes Act 1914 (Cth) I will order that you be subject to a recognisance release order which will have immediate effect. The impact of such recognisance release is that, during the period of two and a half years, you must be of good behaviour, and if you were not, you would be brought back for breach of that matter. The sum I will set for the recognisance release is a sum of $2,000.
60Mr Prosecutor, insofar as the recognisance release, is there anything else I have to pronounce?
61MR DARBY: No, Your Honour, could I just clarify? The term of imprisonment and the operational period of the order, are they ‑ ‑ ‑
62HIS HONOUR: Yes, two and a half years.
63MR DARBY: They are both ‑ ‑ ‑
64HIS HONOUR: Yes.
65MR DARBY: Both two and a half years?
66HIS HONOUR: Yes.
67MR DARBY: Thank you.
68HIS HONOUR: I have to set that operational period under s.19AC; do I not?
69MR DARBY: Yes.
70HIS HONOUR: To the extent that I am required under s.6AAA of the Sentencing Act 1991 (Vic) to indicate in a Commonwealth matter the discount that you have received as a result of pleading guilty, to the best that I can comply with Parliament's requirements, I can only say, clearly, that you would have had a sentence involving immediate imprisonment.
71Do you need, Ms Gibbons, to explain to Ms Morrison what I am about to do?
72MS GIBBONS: No, Your Honour, I understand she has certainly been spoken to by ‑ ‑ ‑
73HIS HONOUR: You better check, I think.
74MS GIBBONS: If I may, thank you, Your Honour. Thank you for the time, Your Honour, I believe that Ms Morrison understands the order that you are pronouncing?
75HIS HONOUR: Yes. You always find some tricks in a Commonwealth pronouncement although there should not be any problem in this one. I think you carry those documents with you, do you not, Mr ‑ ‑ ‑
76MR DARBY: Yes, sorry, I've drafted that.
77HIS HONOUR: Can I have a look at that?
78MR DARBY: Yes, I've prepared two copies and one for Ms Morrison.
79HIS HONOUR: Yes, so, it seems I have complied with that, s.19AC:
“Subject to (3) and (4) a person is convicted of a Federal offence. The Court imposes on the person of a Federal offence does not exceed three years. At the time the sentences are imposed the person is not already serving or …”
80That is right:
“The Court must make a single recognisance release order in respect of that sentence and must not fix a non-parole period”.
81MR DARBY: That has been done.
82HIS HONOUR: That has been done.
83MR DARBY: Yes.
84HIS HONOUR: So the period of gaol sentence is two and a half years. The recognisance release order is made under s.19AC with the conditions, is all I have to explain. Set the recognisance and explain that the condition is to be of good behaviour.
85MR DARBY: Exactly.
86HIS HONOUR: And have her sign that recognisance in due course.
87MR DARBY: That's right, the form of order requires it to be signed in front of Your Honour's associate.
88HIS HONOUR: Yes. Ms Morrison, formally then you will be, as I said, convicted. You will be sentenced to a period of imprisonment of two and a half years.
89Pursuant to s.19AC of the Crimes Act1914 (Cth) I order that you be subject to a recognisance release order and I set the period of operation of that recognisance release order for a period of two and a half years. That recognisance release order will operate immediately which will mean that you will not serve immediate term of imprisonment.
90However, in the period of the operation, you must be of good behaviour, and should you not and you come back before this Court, you would be subject to a pretty severe penalty, obviously.
91Those matters have been explained to you by Ms Gibbons. I do not think there is anything else that I have to follow by way of the Commonwealth request to explain a sentence to someone; is it?
92MR DARBY: No, not in terms of that sentence, no, Your Honour. Your Honour, just as a final matter, a reparation order is sought for the ‑ ‑ ‑
93HIS HONOUR: I thought they were made. They are already entered into, were they not? She has been paying since 2014.
94MR DARBY: Yes, Your Honour, which is ‑ ‑ ‑
95HIS HONOUR: But I will make the reparation order.
96MR DARBY: Thank you. The same arrangement will continue but that is effectively an administrative arrangement.
97HIS HONOUR: All right, I make the reparation order. As I understand, I am to make it in the sum of $81,000; was it not?
98MR DARBY: Yes, $479 and ‑ ‑ ‑
99HIS HONOUR: $81,479 ‑ ‑ ‑
100MR DARBY: And four cents.
101HIS HONOUR: Have you got that for me to sign now or ‑ ‑ ‑
102MR DARBY: That can just be made orally.
103HIS HONOUR: Made orally, very well.
104MR DARBY: Yes.
105HIS HONOUR: Very well, I make that reparation order.
106MR DARBY: Thank you, Your Honour.
107HIS HONOUR: Yes, thank you, Mr Darby and thank you, Ms Gibbons for your assistance to the Court.
108MS GIBBONS: Thank you, Your Honour.
109MR DARBY: Thank you, Your Honour.
110HIS HONOUR: You are free to come out of the dock. Has she signed the - no. Ms Gibbons, you will explain to Ms Morrison that this does not mean it is necessarily the end of these matters.
111MS GIBBONS: Indeed, sir, yes.
112(Orders signed and acknowledged.)
113HIS HONOUR: Yes, you are free to go once you get this document, Ms Morrison. Thank you, again, Ms Gibbons.
114MS GIBBONS: If I may be excused, Your Honour, thank you.
115HIS HONOUR: Thank you.
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