Donohoe v Howe (aka Elwell)
[2010] TASSC 7
•15 March 2010
[2010] TASSC 7
COURT: SUPREME COURT OF TASMANIA
CITATION: Donohoe v Howe (aka Elwell) [2010] TASSC 7
PARTIES: DONOHOE, Danny
v
HOWE (aka ELWELL), Linda Fay
FILE NO/S: LCA 945/2009
DELIVERED ON: 15 March 2010
DELIVERED AT: Hobart
HEARING DATE: 11 February 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Whether penalty in Commonwealth benefits fraud matter manifestly inadequate.
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Matters to be considered when applying the Crimes Act 1914, s19B(1).
O'Brien v Norton-Smith (Mr) Pty Ltd (1995) 83 A Crim R 41; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, applied.
Criminal Code Act 1995 (Cth), s135.2(1)
Crimes Act1914 (Cth), ss16A, 19AC, 19B.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: I M Arendt
Respondent: C J Gibson
Solicitors:
Applicant: Commonwealth Director of Public Prosecutions
Respondent: Zeeman Kable & Page
Judgment Number: [2010] TASSC 7
Number of paragraphs: 31
Serial No 7/2010
File No 945/2009
DANNY DONOHOE v LINDA FAY HOWE (AKA ELWELL)
REASONS FOR JUDGMENT TENNENT J
15 March 2010
On 13 October 2009, having already pleaded guilty, Linda Fay Howe ("the respondent") was dealt with by a magistrate in respect of one count of obtaining a financial advantage contrary to the Criminal Code Act 1935 (Cth), s135.2(1). The learned magistrate did not record a conviction in respect of the charge. Instead, pursuant to the Crimes Act 1914 (Cth) ("the Act"), s19B(1)(d), he required the respondent to enter into a recognizance which required her to be of good behaviour for a period of two years.
The penalty provided for a contravention of s135.2(1) was imprisonment for 12 months and/or a fine of $6,600.
The prosecuting authority ("the applicant") has now sought to review the decision of the learned magistrate. The grounds of review are in the following terms:
"1The Learned Magistrate erred in law by imposing a sentence which was manifestly inadequate in all the circumstances of the case.
Particulars
The sentence imposed does not:
(a) Reflect the Respondent's level of criminality; and
(b) Give sufficient weight to the need for general deterrence.
2The Learned Magistrate erred in fact and in law in holding that the Respondent committed the offence under extenuating circumstances."
Relevant facts
Over the period 14 July 2006 to 13 July 2007, the respondent failed to advise Centrelink that she was living with her partner, and details of his income from employment. As a consequence, she received an overpayment of benefits in the form of a Parenting Payment Single of $13,167.06 during that period. The respondent had been in receipt of a Parenting Payment Partnered from November 1997 to January 1998, and then from May 2005 to December 2005. In December 2005, she separated from her husband and was transferred to Parenting Payment Single. At all relevant times, the payments made to the respondent were made to her financial institution accounts. The respondent was aware that she was required to advise Centrelink if she entered into another partnership, within 14 days of so doing.
On 31 May 2006, the respondent contacted Centrelink. She advised that she intended to enter into a marriage-like relationship. Centrelink posted a form to her to complete with the details relating to her living arrangements. That form was never completed and returned and therefore the Parenting Payment Single continued to be paid. The Parenting Payment Single was a higher payment than that of Parenting Payment Partnered.
The respondent subsequently received numerous letters from Centrelink which stated that she was receiving Parenting Payment Single. She also regularly contacted Centrelink to enquire about her Parenting Payment Single. Some of this contact was for the purpose of obtaining advance payments of benefits to meet obligations. At no stage did the respondent tell Centrelink that she had actually started living with her partner or query why she was still receiving the Parenting Payment Single.
On 27 June 2007, the respondent had a baby. On 2 July 2007, she contacted Centrelink to claim a Family Assistance payment. She noted an Edward Pridmore as the father of her child. Centrelink sent out a form to the respondent which required her to advise Centrelink of Mr Pridmore's circumstances. Mr Pridmore completed the form and returned it to Centrelink on 10 July. In that document, he said that he and the respondent had been partnered since 4 July 2006. Mr Pridmore spoke with a Centrelink officer on 18 July 2007 and said he thought the respondent had told Centrelink of the partnership.
On the same date, the respondent spoke to a Centrelink officer by telephone. She said she had told Centrelink of the partnership in 2006. When the officer suggested to her that she must have been aware she was still receiving the higher rate of benefit, the respondent terminated the telephone call. Throughout the relevant period, the respondent's partner was employed at Metro Tasmania. He earned an annual salary of $38,053.35. None of that income was declared to Centrelink. During the relevant period, the respondent received significant income in the form of family tax benefits, other income and Parenting Payment Single. The information provided by the applicant to the learned magistrate about what the total of that was, was confusing in the extreme, and I have no confidence from the transcript as to what the precise amount was. It appeared to be acknowledged by counsel for the respondent that the total family income during the period of offending was approximately $2,600 per fortnight.
The applicant submitted before the learned magistrate that the respondent must have been aware from her benefit history that being partnered would reduce her benefit. Further, she had received an overpayment on two earlier occasions, once in 2004 and once in 2005, as a result of failing to correctly declare her ex-husband's earnings. She was not prosecuted in respect of those overpayments, but acknowledged them by entering into payment arrangements.
The respondent's counsel told the learned magistrate that the respondent was 35 years old. She had five children. Three of those, aged 11, 9 and 8, were from the marriage which had ended in December 2005, the fourth child was the baby born to the respondent and Mr Pridmore in June 2007 and there had been another child since. Mr Pridmore was 59 years old. When the respondent separated from her former husband, she was left with debts he had incurred and had to deal with creditors. She then met Mr Pridmore early in 2006. While they did not live together, the respondent became pregnant in February 2006 but miscarried. She became pregnant again shortly after but again miscarried. In July 2006, the respondent and Mr Pridmore moved in together.
The respondent became pregnant again in September 2006 and it was this pregnancy which resulted in the birth in June 2007. During this pregnancy, the respondent suffered severe nausea. A number of times she was vomiting uncontrollably such that she had to be taken to hospital. She had hospital visits about once per week. Because they had no family support, Mr Pridmore was often left caring for the respondent's children. Mr Pridmore used up all his sick leave and was threatened with the loss of his job. The family also lived at Beaconsfield and incurred significant petrol costs for Mr Pridmore to get to work and to get to and from the hospital.
It was submitted that the extra money coming in was being used to just make ends meet. The respondent was not receiving child support from her former husband. Further, Mr Pridmore was paying $300 per month on a mortgage in respect of the Beaconsfield home, and $600 per month in respect of two motor vehicles, one of which his former wife had. The family had incurred a further debt of $175 per month for the purchase of a vehicle to carry a family of seven. Other expenses were also referred to. However, it was unclear from the plea in mitigation whether the expenses referred to were current expenses (that is at the time of the plea), expenses being incurred by the respondent prior to the commencement of the relationship with Mr Pridmore, or expenses relative to the period of offending.
As to the benefit payments themselves, counsel for the respondent told the learned magistrate that the respondent had never received the Centrelink form sent to her in about May 2006. It was conceded that the respondent had dealings with Centrelink during the period of the offending, that she knew money was going into her bank account, and knew that the money going in was the wrong amount. Her counsel said:
"… essentially it was a situation where she thought that she'd notified Centrelink, the money kept coming and she did no more about it."
The Crimes Act 1914 (Cth), s19B
Section 19B(1) relevantly provides:
"(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: …"
The law in relation to the application of s19B(1)
In O'Brien v Norton-Smith (Mr) Pty Ltd (1995) 83 A Crim R 41, Wright J reviewed a decision of a magistrate made pursuant to the Act, s19B. His Honour determined that there was no relevant matter which the magistrate was entitled to accord such weight as to provide a sufficient basis for applying the ameliorating provisions of the Crimes Act, s19B. He also determined that, irrespective of whether the magistrate was entitled to apply s19B, the penalty imposed was so inadequate as to manifest error which called for the intervention of an appellate court. His Honour said, commencing at 43:
"In discussing the provisions of the Probation of Offenders Act 1973 (Tas), s 7, (which in all material respects is indistinguishable from the Crimes Act, s19B) Everett J in Stewart v Smith (unreported, No A22/1981) had cause to consider the meaning of the words 'antecedents' and 'inexpedient' as those words appear in the section and, as he said at 9 of his judgment, having first referred to an earlier judgment of the Chief Justice in Cole v P F Eiszele and D A Eiszele (unreported, No 33/1979):
'The Chief Justice dealt at some length with the meaning of the word 'antecedents' as used in s7 of the Act, and I am content to adopt and apply his Honour's references to decided cases and his ultimate conclusion, thus expressed: 'All the events of a defendant's history, both recent and distant, form part of his antecedents. But it must also be borne in mind that a court is only required to have regard to the matters referred to in s 7(1)(a), (b) and (c) insofar as they are relevant to the formation of the opinion as to whether it is inexpedient to inflict any punishment ... .' (The emphasis is mine.)
In my opinion the effect of s 7(1)(d) of the Act is that the sentencing authority should, in the usual way, consider all the facts and circumstances relating to the offence, and should also, whenever it may be prima facie appropriate to do so, consider whether any of the bases for the application of s7(1) of the Act has been established. The touchstone of whether or not that provision should, in the circumstances of a particular case, be applied is the expression 'it is inexpedient to inflict any punishment ... '. The word 'inexpedient' is defined in the Shorter Oxford English Dictionary, Vol 1, p997 as ' ... disadvantageous in the circumstances, unadvisable, impolitic'. The nature and extent of the matters which may give rise to the inexpediency of inflicting any punishment are expressed in pars (a), (b) and (c) of s 7(1) of the Act. There may only be one such matter; there may be several. If any one is established, the magistrate may, in the exercise of what is obviously a wide and special discretion, decide that it is inexpedient to inflict any punishment.'
In Lanham v Brake (1983) 34 SASR 578 at 583 Cox J said, in considering the meaning and scope of the word 'extenuating':
'The definition of "extenuate", appropriate for par(b)(iii) of s19B(1) of the Crimes Act, is "to lessen, or seem to lessen, the seeming magnitude of (guilt or offence) by partial excuses" (Shorter Oxford English Dictionary). Cf, Nitschke v Halliday (1982) 30 SASR 119 at 121-122.'
He also said (at 585):
'I realise that, if there is a reasonable basis for the exercise of the kind of discretion that is conferred by s 19B of the Crimes Act, it is not for an appellate court to substitute its own view of the way in which the discretion should have been exercised for that taken by the court of first instance. However, I am satisfied here that the learned special magistrate did take irrelevant matters into account in deciding not to convict the respondent. Besides, the exercise of a s19B discretion requires more than the mere establishment of one of the par (b) conditions. "Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hand lenience dictated by some extraneous and idiosyncratic consideration": Cobiac v Liddy (1969) 119 CLR 257, per Windeyer J at 276. See also Nitschke v Halliday at 122-123.' "
In Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, the Court of Criminal Appeal in New South Wales had cause to consider the Act,s19B, and to determine questions arising in a case stated. Points 1 - 3 in the headnote provide:
"1) The application of the discretion in s 19B consists of two stages. The first is the identification of one or more of the factors identified in s 19B(1)(b). The second stage is the determination that, having regard to the factor or factors so identified it 'is inexpedient to inflict any punishment' or to reach the other conclusions for which s 19B provides. Also in determining the second stage of the discretion (inexpediency) the court must take into account the matters in s 16A(2).
Cobiac v Liddy (1969) 119 CLR 257; Jones v Morley (1981) 29 SASR 57; Aikman v Bourne (1992) 63 A Crim R 467; McQuestin v Australian Securities Commission (1993) 2 Tas R 30; 69 A Crim R 522, considered.
(2) Section 19B formulates a test of whether punishment is inexpedient. The appellant's proposition that the section is not available under revenue legislation unless exceptional circumstances are found to exist is not supported by authority.
Kelton v Uren (1981) 27 SASR 92; Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 81 FLR 330; O'Brien v MR Norton-Smith Pty Ltd (1995) 83 A Crim R 41, considered.
(3) Though general deterrence is not expressly listed in s16A(2) it is a relevant consideration for sentencing in Commonwealth offences.
Paull (1990) 20 NSWLR 427; 49 A Crim R 142; DPP (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123; Sinclair (1990) 51 A Crim R 418, considered."
Spigelman CJ, with whom Simpson J and Einfeld AJ agreed also said at par47:
"It may well be that this factor cannot be brought within s19B(1)(b)(iii). That provision does not permit the court to have regard to "extenuating circumstances". The provision permits the court to have regard to "the extent to which the offence was committed under extenuating circumstances". This subparagraph requires some kind of link between the circumstances said to be extenuating and the commission of the offence. Nothing in her Honour's reasoning suggests that she made any such finding."
The learned magistrate's decision
The relevant part of the decision was as follows:
"Now when I first heard the summary in relation to this matter my feeling was certainly it was a huge amount of money and it was a regular amount of money and it was something you took advantage of. However, I am satisfied, having heard a pretty comprehensive plea from Ms Gibson that there were many many factors that – standing here in Court that we couldn't envisage, and I would regard those factors as extenuating circumstances, and what I propose to deal with you is under s19B; and that is to deal with you on – discharge you without proceeding to conviction; except that I'm going to place you on a recognizance and the amount is a thousand dollars and the time period is two years."
Applicant's submissions
It was submitted that, from the learned magistrate's reasons, it was unclear upon what basis he took the course of action he did. He made no finding that this offending was of a trivial nature. He made no specific findings as to the respondent's character, age, mental health or antecedents. The only connection which could be said to be found between the learned magistrate's reasons and s19B(1) was the use of the term "extenuating circumstances".
Counsel submitted that, if the learned magistrate was relying on s19B(1)(b)(iii), then, before he could invoke the power in s19B(1), he had to be satisfied:
· of the extent to which the offence committed by the respondent was committed under extenuating circumstances, and
· that, because of that extent, it was inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it was expedient to release the respondent on probation.
He submitted that what the learned magistrate did was simply refer to the factors referred to by the respondent's counsel in her plea in mitigation (many of which related to the circumstances of the respondent prior to the period of offending, and to that of the respondent and her partner over two years after the offending), and determine they constituted extenuating circumstances. He did not, as he should have, consider the circumstances in which the offending occurred and the extent to which they were extenuating. Counsel further submitted that, if the learned magistrate's finding demonstrated that he did consider the extent to which the circumstances in which the offending occurred were extenuating, there was simply insufficient evidence upon which he could have based that finding.
If indeed the learned magistrate did make a finding as to the extent to which the offending occurred under extenuating circumstances, it was then, in any event, incumbent upon him to consider the factors identified in the Act, s16A(2), for the purpose of determining the second stage of the process he was required to undertake. In addition, he was required to consider the need for any sentence to reflect general deterrence. Counsel's submission was to the effect that there were simply not enough matters before the learned magistrate to reflect those factors and to warrant the use of the ameliorating provisions of the Act, s19B.
Respondent's submissions
Counsel for the respondent submitted that it was clear from the learned magistrate's reasons that he was considering the Act, s19B(1)(b)(iii), and that his finding was made in terms of that section. She outlined a number of factors which she submitted would have supported the finding. These were:
·
that the respondent contacted Centrelink to advise she intended to enter a relationship. It was conceded she did nothing further;
[The facts indicate that the respondent told Centrelink she intended to enter a relationship, but that this occurred some two months prior to her actually doing so. Further, she did not then, or indeed at any time until the detail was provided by Mr Pridmore in 2007, provide details about Mr Pridmore's financial circumstances, such as to allow Centrelink to determine her benefit entitlement.]
· Mr Pridmore's financial circumstances were modest and he had taken into his home the respondent and her three children;
· Mr Pridmore was older and nearing retirement;
·
The respondent was ill during her pregnancy and she and Mr Pridmore were, as a consequence, placed under pressure;
[It should be noted that this factor can have no relevance for the period July to September 2006, prior to the pregnancy.]
· The parties disclosed the relationship in July 2007 shortly after the birth of their first child;
· The respondent was repaying the debt at the rate of $15 per fortnight;
· The complaint against the respondent was not laid until 2009;
· The respondent had by the time of sentencing had a second child;
· There was no suggestion that the family lived an extravagant lifestyle;
· This was not a case of the respondent having lied to Centrelink. It was a case of omission.
Counsel for the respondent submitted that clearly the learned magistrate was moved by the factors in the plea and determined they were extenuating. Counsel made no reference at all to the authorities to which counsel for the applicant had referred, and no submissions as to whether the learned magistrate had or had not undertaken the two-stage process identified in Baffsky.
Discussion
The submissions of counsel for the respondent, in particular the reference to the learned magistrate being moved, appeared to demonstrate a lack of understanding of the process the learned magistrate was required to follow. It was never the case that the learned magistrate should simply make a finding, by reference to all the factors raised by counsel, that they amounted to extenuating circumstances. His Honour was required to link relevant factors to the offending.
The learned magistrate did not identify those circumstances of the respondent which were directly linked to the offending. He referred only to the factors identified by the respondent's counsel generally, and determined they amounted to extenuating circumstances. Many of those factors did not relate to the period of the offending, or, if they did, it was impossible from the plea in mitigation to determine that. There is nothing in the reasons of the learned magistrate to suggest that he directed his mind specifically to the two-stage process identified in Baffsky.
The learned magistrate was, in any event, required to have regard to the factors set out in the Act, s16A(2), and the issue of general deterrence. His very brief reasons suggest he was conscious of the fact that this offending involved a significant amount. There was an acknowledgment that it was a regular amount that the respondent was receiving and that she had taken advantage of it. There was however no acknowledgment of the period over which the offending occurred or the deliberate nature of it.
There appears to have been no consideration of a number of the factors identified in the Act, s16A(2), more specifically subs2(f) (contrition), subs2(h) (degree of co-operation – in this regard the respondent had terminated a call with a Centrelink officer when it was suggested she knew what had been happening and she declined any interview), subs2(j) (deterrent effect of any sentence under consideration), subs2(k) (need for adequate punishment), subs2(n) (prospects of rehabilitation – relevant because of prior history), and subs2(p) (probable effect of sentence). While the learned magistrate made some preliminary comments before sentencing about the wonderful system of social security that this country has, he made no reference to the need for a general deterrent to prevent people from taking advantage of that easily accessible system.
Conclusion as to ground 2
I am satisfied that what the learned magistrate was intending to refer to when he made use of the words "extenuating circumstances" in his sentencing remarks was the Act, s19B(1)(b)(iii). However, his remarks do not demonstrate that he considered and applied to the facts of this case the correct test as identified by Spigelman CJ in Baffsky, namely that he considered the circumstances under which the offending occurred, determined that all or some had a link to the offending, and determined the extent to which such circumstances were extenuating circumstances.
Indeed, the learned magistrate's remarks make it clear that he simply took into account all the circumstances affecting the respondent, prior to, during and post the period of offending put to him by her counsel, and determined in a general fashion that they were extenuating. In doing so he made an error. Ground 2 must therefore succeed.
Conclusion as to ground 1
It was conceded by counsel for the applicant that this review was in the nature of a Crown appeal against sentence and that the principles which apply to such appeals should apply. This ground should therefore only succeed if the sentence imposed reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error of principle: see Everett v R (1994) 181 CLR 295; R v Clarke [1996] 2 VR 520.
Counsel for the applicant provided to the Court some comparative sentencing material from databases maintained by the Commonwealth. I accept that such material must be viewed with caution, because it does not contain a complete record of the factors taken into account by the relevant sentencing officer. One part of the material summarised sentences where the only requirement was that an offender was required to enter into a recognizance. The factors relevant to sentencing identified in the material were the age, sex and marital status of the offender, the period over which the offending occurred, and the amount of the fraud. By reference to the amount involved alone, the sentence imposed in this matter involved an amount over double that of the next such sentence where only a recognizance was involved. A second part of the material related to sentences generally where the amount involved was similar to that in the present case. Almost all involved the imposition of sentences of imprisonment, and most which did, resulted in the offender being released forthwith.
While each of the sentences canvassed in the comparative material provided would necessarily have turned on its own facts, they provide an indication that the sentence imposed in the present case was, by reference to them, significantly lenient. I am of the view that the sentence imposed in the present case did not reflect the period over which the offending occurred, the nature of the offending (a failure to advise Centrelink of relevant information in circumstances where she knew she had an obligation to do so), the amount of the overpayment, and the need for a sentence of general deterrence. In those circumstances, I am satisfied that the sentence imposed was so manifestly inadequate as to constitute an error of principle. This ground of review should succeed.
Outcome
While no specific submissions were directed by counsel to the question of what order this Court should make in the event the review succeeded, counsel for the applicant did tell the Court that this was not a case where the Crown sought that an immediate custodial sentence be imposed. Given the material available to this Court, the time that may be taken in finalising the matter were it returned to the lower court and the need, from the respondent's perspective, to have this matter resolved as soon as is possible, I will proceed to quash the sentence imposed by the learned magistrate and re-sentence the respondent. In doing so I take into account her plea of guilty, her personal circumstances, the circumstances of the offending, that the respondent has no prior matters, and the need for a sentence of both personal and general deterrence.
Orders
1.The order by which the learned magistrate recorded no conviction but released the respondent upon her entering into a recognizance pursuant to the Act, s19B(1), on 13 October 2009 is quashed.
2.By way of re-sentence, in respect of one count of obtaining a financial advantage from the Commonwealth contrary to the Crimes Act 1914, s135.2(1), the respondent is convicted of that crime and is to serve a period of six months imprisonment.
3.Pursuant to the Act, s19AC(1), the respondent is to be released forthwith upon her entering into a recognizance without sureties in the sum of $1,000 requiring her to be of good behaviour for a period of two years.
2
2