DPP (Cth) v Milne
[2001] VSCA 93
•15 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 394 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA |
| v. |
| JANET ANNE MILNE |
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JUDGES: | WINNEKE, A.C.J., ORMISTON and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 and 5 June 2001 | |
DATE OF JUDGMENT: | 15 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 93 | |
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Criminal law – Crown appeal against sentences imposed for “welfare frauds” – Appeal allowed and sentences substituted for those imposed in County Court – Sentences involving immediate incarceration notwithstanding orders for immediate release made by sentencing judge – Principles to be applied by Court upon Crown appeal discussed – Section 29 Crimes Act (Cth.); s.567A Crimes Act (Vic.).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. D.J. Bugg Q.C., D.P.P.(Cth.) and Mr. M.P. Cahill | Solicitor for the Director of Public Prosecutions (Cth.) |
| For the Respondent | Mr. D. Grace Q.C. and Mr. A. George | Andrew George |
WINNEKE, A.C.J.:
On 2 November 2000, the respondent pleaded guilty in the County Court to the commission of what are commonly called “welfare frauds” over a period of more than 18 years commencing in 1981 and ending in December 1999 when she was arrested. The respondent is presently in her 50th year, having been born in September 1951. Since May 1981 she has been living as man and wife at premises in Kensington with a man called Edward Hook, to whom she has not been married but whose name she has commonly adopted. Before her relationship with Hook commenced she had borne a son (Sean) to another man with whom she had had a relationship. The child was born to the respondent in 1969, when she was about 18 years of age. With the assistance of others, she assumed the responsibility for his upbringing. The oral evidence given upon the plea – which was confined to that of the respondent’s elder sister – was to the effect that the respondent was devoted to her son and had been a good mother to him.
The material placed before the judge on the plea revealed that from 1981 to 1999 the respondent had, by deceitful means, received from the Commonwealth variously single parent payments, unemployment benefits and disability benefits to which she was not entitled. The frauds were revealed in late 1999 when computerized data suggested that a person living at 98 Bayswater Road, Kensington (the respondent’s address) was in receipt of benefits under the respective names of “Janet Ann Milne” and “Janet Ann Hook”, each of whom was recorded as having the same date of birth – namely 20 September 1951. Payments were discontinued on 7 December 1999 when the respondent was arrested. She was interviewed on 10 December 1999 and she made no comment to all questions asked of her. Following the interview, she was charged with five separate offences which subsequently, after a committal proceeding on 26 May 2000, became the five counts on the indictment to which she eventually pleaded guilty on 2 November 2000. Those five counts were as follows:
Count 1that between 16 May 1981 and 24 October 1984 she had imposed upon the Commonwealth – contrary to s.29B of the Crimes Act (Cth.) - by obtaining a single parent’s benefit through false representations by omission – namely by failing to advise that she was living in a de facto relationship with Hook.
Count 2that between 25 October 1984 and 2 February 1987, she had defrauded the Commonwealth – contrary to s.29D of the Crimes Act (Cth.) – by obtaining a single parent’s benefit whilst living in a de facto relationship with Hook.
The total amount conceded to have been received by way of single parent’s benefit during the periods covered by counts 1 and 2 was $33,506.
Count 3that between 5 February 1987 and 24 November 1993 she had defrauded the Commonwealth – contrary to s.29D of the Crimes Act (Cth.) – by obtaining unemployment benefits in the name of Janet Ann Milne whilst she was working full time in the name of Janet Ann Hook at the Royal Melbourne Hospital.
The amount of benefits conceded to have been received during the period covered by the count was $48,650.
Count 4that between 25 November 1993 and 25 November 1999 she had defrauded the Commonwealth – contrary to s.29D Crimes Act (Cth.) – by obtaining unemployment benefits whilst being self employed on a full time basis.
The amount of benefits conceded to have been received during the period was $52,463.
Count 5that between 6 June 1996 and 7 December 1999 she had defrauded the Commonwealth – contrary to s.29D of the Crimes Act (Cth.) – by obtaining unemployment benefits in the name of Milne and a disability pension in the name of Hook whilst she was self-employed.
The amount of benefits so received was $37,975.
The total amount of payments dishonestly received over the years was, thus, $172,596.
On 17 November 2000, her Honour sentenced the respondent as follows:
Count 13 months imprisonment (the offence, at the relevant time carried a maximum penalty of 2 years).
Count 26 months imprisonment (the offence, at the relevant time carried a maximum penalty of 5 years).
Counts 3, 4 and 5 9 months imprisonment on each (for which, at the relevant time, the maximum was 10 years).
Each of the sentences imposed was, in the absence of ordering differential commencement dates, to be served concurrently with the others. The total effective sentence was therefore 9 months’ imprisonment. Her Honour ordered that the respondent be released forthwith upon entering into a recognizance release order to be of good behaviour for a period of 2 years (s.20(1)(b) Crimes Act (Cth.).
In accordance with the provisions of the Crimes Act her Honour informed the respondent that she was imposing a term of imprisonment because, as she said, “your offending is serious”. Her Honour also ordered the respondent to pay a pecuniary penalty to the Commonwealth of $76,709 which her Honour had been informed was the amount of the proceeds of offending still outstanding. The judge had been told during the course of the plea that the respondent had, in 1997, received a legacy of about $100,000 from her late father’s estate and that, with the aid of a loan, she was in funds which would enable her to make full restitution of the amounts dishonestly received over the 18 year period. The plea was conducted, and sentence imposed, on the basis that full restitution would be made by the respondent.
The Director of Public Prosecutions (Cth.), invoking the right of appeal granted by s.567A Crimes Act 1958 (Vic.)[1], has appealed to this Court asserting that the sentences imposed by her Honour were, individually, and as a total effective sentence, manifestly inadequate. In accordance with s.567A, the Director asserts that he considers that different sentences should have been passed and is satisfied that an appeal should be brought in the public interest. In support of this assertion, the Director has submitted that the sentences should be seen to manifestly underestimate the culpability of the respondent in systematically cheating the social welfare scheme for the purposes of enriching herself over an extremely long period and, in the course of doing so, repeatedly making false representations to the authorities. It was submitted that the degree of criminality exhibited by the respondent was enhanced by the fact that she had continued to deceive by maintaining a false entitlement to unemployment benefits and a disability pension after 1997 even though she had received an inheritance of $100,000. The circumstances of the offending were, so it was said, reflective of pure greed and that her Honour must have given too much weight to the personal circumstances of the respondent and too little weight to elements of both general and specific deterrence which ought, in dealing with offences of this kind, to be regarded as dominant purposes of punishment. Her Honour’s failure to order any cumulation, it was submitted, was reflective of the fact that she had manifestly failed to identify in her sentencing discretion the high degree of culpability involved in the course of offending. Likewise, the Director submitted, her Honour’s exercise of the discretionary power to release the respondent forthwith had miscarried for similar reasons.
[1]Cf. Rhode & Ors. v. D.P.P. (1986) 161 C.L.R. 119 at 125.
Before considering these submissions, it is desirable to refer briefly to the material which was before her Honour and which she was bound to consider in the exercise of her sentencing discretion. That material largely comprised submissions by counsel, made no doubt upon instructions, but supplemented – as I have said – by evidence from the respondent’s elder sister. There were also medical and other reports which, to some extent, confirmed the submissions which were made by counsel. The material, as a whole, painted a depressing picture of the respondent’s upbringing and background. It appears that she was raised in a somewhat dysfunctional family where the father was a heavy drinker, a strict disciplinarian and a poor provider. The mother was said to be self-centred and discontented with her lot in life, something for which she blamed her children. There were three children, the respondent, her elder sister and a younger girl. For reasons which do not appear entirely clear, the elder sister was the preferred daughter – at least to the extent of receiving a reasonable education which was denied to the respondent who, so it was said (although not wholly supported by evidence), was required to leave school early to join the workforce in somewhat menial employment. The mother and the father appear to have lived in strained circumstances until, when the respondent became pregnant with her child, the mother refused to have anything to do with her or her baby, which was for a time placed in the care of the State. As I understand the matters put on the plea, the respondent was left much to her own devices; her mother left home with her youngest child and the elder sister did likewise to pursue her own interests in life. The respondent, who reclaimed her child from the authorities after some 7 months, returned to live with her father but received little by way of practical, financial or emotional support. It was put to her Honour that the respondent had, in these adverse circumstances, felt unwanted and abandoned and that those feelings had buried themselves deep into her psyche and produced a need for and dependence upon alternative forms of support so that she should never again have to experience such insecurity, and her child should never have to feel abandoned in the way in which she had been abandoned. It was said that her relationship with Hook was not a firm one and that she was afflicted by fears that, unless she was self-sufficient, she may become trapped in a relationship much the same as her mother and father. Before she met Hook she was in receipt of the single parent’s pension. She knew that when she and Hook bought premises in Kensington in 1981, and commenced to live together, it was wrong to continue to claim the single parent pension but that she was overborne by her perceived need to cater for the security and independence of herself and her son.
It does not appear clear from what was put to her Honour how or why the respondent commenced to claim unemployment benefits in 1987. At that stage she and Hook were living in their Kensington house, which they had purchased in joint names; and she was employed, and had been so since 1983, with the Royal Melbourne Hospital. Hook, too, was employed. The fact was that, when her entitlement to a single parent benefit ceased in 1987 for want of qualification (the child turned 18), she claimed unemployment benefits in the name of “Hook” and continued to claim them until 1999. Her employment with Royal Melbourne Hospital had continued to 1993 when she ceased to work because of back problems. She had injured her lower back in 1988 in a work related accident which led to laminectomy and fusion to the vertebrae of the lower lumbar and sacral spines in 1991. That injury seems to have led to a Workcover “payout” of $27,000 later in the 1990’s and, in 1995, Royal Melbourne Hospital paid her superannuation claim in the sum of $9,000. It would seem that, as a result of their combined assets, she and Hook were able to pay off the debt outstanding upon their Kensington home, and the applicant acquired some freehold land in Burraboi, NSW. The respondent also bought some Telstra shares and, at the date of arrest, she had bank deposits totalling $75,000. Upon the determination of her employment with Royal Melbourne Hospital she commenced a business in McCauley Road, Kensington, buying and selling second hand goods. From 15 April 1996 she leased a shop in the same road which she operated on the same basis under the name and style of “Kensington Bargain Centre”. She operated that business by herself, holding a second-hand dealer’s licence and submitting tax returns. It was whilst she was running this business that she claimed and received a disability pension. There seems to have been no contest at the plea that she had a long term injury to her back which had been prolonged because of an infection which had developed at the operation site. Nevertheless, it was not disputed that she was able to conduct her business, and that she was not entitled to continue to claim the unemployment benefits or the disability pension, which, in any event, were mutually exclusive. Indeed, it was in 1995 that her father had died and she had become entitled to the inheritance to which I have earlier referred. Her persistent offending was explained to her Honour by the combination of circumstances which I have related, culminating in the almost pathological desire to maintain financial independence lest her position reduce itself to that which afflicted her parents. As I have intimated, however, her Honour had no evidence from the respondent, or her mother (who was said to be old and sick) or Hook, or from any psychologist.
On this appeal Mr. Grace (who appeared with Mr. George for the respondent) submitted that her Honour’s sentences should not be regarded as manifestly inadequate in the sense that this Court should, on a Crown appeal, be driven to interfere with them. He reminded the Court of the restraints imposed upon it in determining a Crown appeal[2]. These principles have recently been re-stated in Dinsdale v.R.[3].
[2]Everett v. R. (1994) 181 C.L.R. 295 at 299-300 per Brennan, Deane, Dawson and Gaudron, JJ.; R. v. Clarke [1996] 2 V.R. 520 at 522.
[3](2000) 175 A.L.J.R. 1538 at [62] per Kirby, J.
As Mr. Grace has reminded us, it is clear from authority binding upon this Court that its approach to a “Crown appeal” against sentence pursuant to s.567A of the Crimes Act 1958 (Vic.) is not unfettered. The fetters stem from principles of fairness, deeply rooted in the administration of criminal justice, which run counter to the notion of “doubly jeopardising” the freedom of the prisoner beyond the sentence already imposed by requiring him or her to stand for sentence a second time. That jeopardy is particularly apparent where, as here, the respondent – as a consequence of the sentence imposed – is at large. The principles to which I refer have application whether the Crown appeal is brought by leave, or as of right – as is the case in this State[4]. They have been commonly applied in this State by this Court[5].
[4]Griffiths v. R. (1977) 137 C.L.R. 293; Malvaso v. R. (1989) 168 C.L.R. 227; Everett v. R., supra.
[5]D.P.P. v. Clarke, supra; D.P.P. v. Bulfin [1998] 4 V.R. 114 at 117; R. v. Laffey [1998] 1 V.R. 155 at 161.
Nevertheless, the Court of Appeal is invested with its jurisdiction under s.567A of the Crimes Act for purposes, inter alia, of establishing and maintaining proper sentencing standards in this State and rectifying sentences which reveal such manifest inadequacy or inconsistency in such sentencing standards as to constitute error of principle[6]. In particular the Court will exercise its power where the sentences in question are so manifestly inadequate as to offend public conscience[7]. As McHugh, J. said in Everett v. R., supra, at 306:
“The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”
[6]D.P.P. v. Clarke, supra, at 522.
[7]R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-3.
Of course, the more lenient a sentence is – particularly those which have been wholly suspended – the more likely it is to excite the Crown to invoke the appellate court’s jurisdiction. If intervention is warranted in accordance with the principles to which I have referred, the Court will be entitled to exercise its jurisdiction against an accused who has been set free, notwithstanding the accentuated jeopardy which flows to that person by such exercise[8]. Nevertheless, Mr. Grace invoked the principles referred to in support of his ultimate submission that this Court should not interfere with the sentences which her Honour imposed. Whilst he conceded that the Court had power to impose a more severe sentence if it was of the view that the sentences were manifestly inadequate, such a view was not open in this case because the individual sentences imposed, whilst they might be thought to be low, were within the range available to the judge in the exercise of her discretion and it was not within the power of this Court to increase those sentences simply because it was of the view that it would have imposed different, and more severe, sentences than those which the judge had imposed. In summary form, Mr. Grace’s submissions were as follows:
[8]See D.P.P. v. James Anthony Wilson [2000] VSCA 112 at [15], [21], [24] and the authorities referred to therein.
(a)The Director was not entitled to submit that the total effective sentence was, itself, manifestly inadequate on account of the Judge’s failure to order cumulation, because he had taken no ground of appeal on that point. Insofar as relevant, the grounds upon which the Director relied were two-fold, namely:
(i)that the sentences imposed upon the respondent were manifestly inadequate having regard to all the circumstances; and
(ii)that the judge was in error in ordering the respondent to be released forthwith.
Such grounds, in the absence of amendment, so Mr. Grace submitted, did not allow of an argument that the judge should have cumulated portions of one sentence upon other sentences imposed. In this respect he relied upon the statements made by the Appeal Division of the Supreme Court in R. v. Boucher[9] that:
“It is not possible to appeal against a total effective sentence : the prisoner can appeal only against the individual sentences of imprisonment and the orders made for concurrency and cumulation.”
A fortiori, so Mr. Grace contended, the Director, on a Crown appeal can only appeal against lack of appropriate cumulation upon notice which stipulates that there is error to be found in the failure to order such cumulation.
(b)In the face of the Director’s concession that the sentences imposed on counts 1 and 2 were within the range open to her Honour (a concession so made) this Court should not be prepared to conclude that her sentences on counts 3, 4 and 5 were not also within the range. Although these sentences were being imposed for continuing and different types of social welfare fraud, the sentences of 9 months ordered by her Honour were open to her having regard to the mitigating factors which she was entitled to find; namely the respondent’s unsettled background, her otherwise good character, her pleas of guilty, her health and the fact that she had made full restitution. It was said that, although the total amounts received by the respondent might seem large, they were of an order of between $500 per month and $900 per month. It was also submitted that a Director’s appeal was an inadequate vehicle for interfering with these sentences because, even if it could be said that they were manifestly inadequate, the Court would be constrained, by the relevant principles, to substitute sentences in “the lower range” available and any such substituted sentences would ultimately have the appearance of “tinkering”. Mr. Grace referred, in particular, to observations made by Kirby, J. in Dinsdale v. R., supra, at [62].
(c)It could not be concluded that her Honour’s discretion in ordering immediate release of the respondent had miscarried. It was the scheme of the sentencing provisions of the Crimes Act (Cth.) that a sentence of actual imprisonment should be a punishment of “last resort” and that, before such a punishment could be ordered, the judge had to be satisfied that no other sentencing option was appropriate (s.17A of Crimes Act (Cth)). This required her Honour to consider, as an appropriate sentencing option, the option of immediate release on recognizance (s.20(1)(b)); and that this Court, on a Director’s appeal, should be slow to interfere with her exercise of that discretion, even though her Honour did not reveal any discrete reason for its exercise. Those reasons could properly be inferred from the mitigating material which she had before her. The Court, it was submitted, should be the more reluctant to interfere with that discretion having regard to the fact that the respondent has been at liberty for some months pursuant to her Honour’s orders without any suggestion that she has been in breach of her recognizance. Indeed, there was material which was put before us, with the Director’s consent, to demonstrate that the respondent had obtained a loan for the purposes of re-paying the outstanding balance of the amount owed in restitution; that she had suffered the opprobrium of contemporary publicity attending the initial sentencing process; that she has continued to work in a volunteer capacity with the Society of St. Vincent de Paul since sentence; and that she is suffering on-going symptoms of anxiety, depression and hypertension. In further support of his submission that the Court should not interfere with her Honour’s discretion to release the respondent forthwith, Mr. Grace relied upon various sentencing statistics which had been placed before her Honour by the Crown. These revealed, he said, that, in cases like this involving “welfare frauds”, the courts had commonly – indeed in nearly half of the cases contained in the statistics – released the offender forthwith or imposed other sentences which did not involve incarceration.
[9][1995] 1 V.R. 110 at 116.
Powerful as the submissions made by the respondent are, I am satisfied that the sentences which the learned judge imposed on counts 3, 4 and 5 were wholly inadequate to meet the gravity of the respondent’s course of criminal conduct; as was the judge’s order to release the respondent forthwith from the sentences of imprisonment imposed. To allow those sentences and orders to stand would, in my view, distort proper sentencing standards in this State for the types of crimes which the respondent committed over such a lengthy period. The evidence before the judge disclosed that the respondent was a serial cheat of the welfare system over a period of 18 years. Her frauds came to an end, not because of any locus poenitentiae on her part, but because she was found out; and even then she was not prepared to make a “clean breast” of it to the investigating police. She had no real need to obtain the benefits which she was claiming. At all relevant times she was living in a de facto relationship and was employed, either with others, or on her own account. Indeed, during the last 4 years she was “double-dipping” into unemployment and disability benefits when she was expecting, and then receiving, a legacy of about $100,000 from her late father’s estate. She, thus, had no compelling need to do what she did. When she was finally brought before the court to account for her frauds, she claimed that she had been driven by a deeply seated perceived need to establish some financial security for herself and her son lest they should be abandoned in the way in which she had been abandoned by her parents. This was, as I have noted, an explanation advanced by her counsel on her behalf without any evidential backing from herself, her de facto, or any other professional evidence. Insofar as it had any support at all, it came from her sister who confessed to having little contact with the respondent for many years. Indeed, on this appeal, very little was said to sustain the “perceived need” which figured so prominently before the sentencing judge. It is difficult to resist the conclusion that her systematic cheating of the “welfare scheme” was occasioned by the fact that she found it easy to misrepresent her way into benefits provided by a system in which the barriers were kept low to ensure that those who really needed support were catered for. In short, it is difficult to imagine a more deliberate case of cheating the revenue. The sentencing judge appeared to have recognized this because she said:
“The facts in this case are most serious and your conduct over such a lengthy period was deliberately deceitful in the giving of false information on many occasions, and as such, was outrageous.”
These sentiments were, in my view, well warranted but they were not matched by the sentences imposed. Indeed the sentences imposed upon counts 3, 4 and 5, in respect of which the maximum sentence was 10 years’ imprisonment, were – as I see it, and notwithstanding the impact of s.16G of the Crimes Act – almost derisory. The claim for unemployment benefits which commenced in 1987 appears, as I have said, to have been made for no better reason than that she had lost her entitlement to a single parent benefit. She continued to claim those latter benefits for a period of 12 years whilst she was employed or on “Work Cover benefits” (count 3) or whilst self-employed (count 4). Such offending, it was conceded, must have involved repeated false representations designed to conceal her true circumstances. Indeed, in the course of her sentencing remarks the learned judge noted:
“All of these benefits were paid to you over a period in excess of 18 years, during which you repeatedly gave false information about your living status by stating that you were single and unemployed.”
In 1996 she added a new dimension to her frauds by claiming – in a name different from the one used to obtain the unemployment benefits – a disability allowance (count 4). Thereafter she was in receipt of two different types of benefits even though she knew she would receive, and did in fact receive, the substantial inheritance from her father’s estate. The level of criminality involved in such offending was of such a high order that, in my opinion, it called for sentences of imprisonment significantly higher than those imposed by her Honour; and also required that some portion of those sentences be immediately served. In coming to this conclusion, I should say that I am not at all impressed by the reliance placed upon the statistics to which the respondent’s counsel referred. Quite apart from the fact that statistics will rarely be of use in determining whether a sentence imposed in a particular case is manifestly excessive or manifestly inadequate – for the simple reason that they do not illuminate the facts upon which the sentences in other cases were imposed - it is clear that, on their face, courts in this State have not infrequently imposed prison sentences substantially higher than those imposed by her Honour for social welfare frauds which have continued for lengthy periods and are not attended by circumstances demonstrating penury or real need[10]. There can be no doubt that the judge did not regard the respondent’s conduct to have been driven by necessitous circumstances, because she said:
“As a result of this lengthy, and persistently, deceitful conduct, you received a total of $172,596, which enabled you and your partner to acquire the home in which you have been living since 1981, and some real estate in New South Wales.”
[10]cf. R. v. Skuta, Court of Appeal, unreported, 26 August 1998; R. v. Walker, County Court, unreported, 4 February 1999; R. v. Hislop, County Court, unreported, 5 March 1999.
In circumstances where extensive frauds on the welfare system have been perpetrated over a long period, a significant purpose of punishment must, in my view, be general deterrence[11]. Such purpose of punishment will ordinarily be influential both in the fixing of appropriate sentences for the crimes committed and in fixing a point at which the prisoner is to be eligible for release. Although, as has been pointed out on behalf of the respondent, there were powerful factors to be taken into account on her behalf in mitigation of punishment – particularly her otherwise good character, her pleas of guilty, her physical health and the fact that she had made restitution – I am nevertheless driven to the conclusion, from the nature of the sentences imposed, that her Honour has given far too little weight to the notion that a strong message must be sent to members of the community, who are minded to engage in systematic cheating of the welfare system of the type in which the respondent has engaged, that such conduct will not be tolerated by the courts. This Court has tried to get this message across in many cases of long-running and substantial frauds on the revenue, which have frequently been misdescribed as “victimless crimes”[12]. For my own part, it seems to me that the sentences imposed by her Honour – particularly those imposed on counts 3, 4 and 5 – wholly fail to incorporate that message, and accord disproportionate weight to the matters urged in mitigation. Her Honour referred to these mitigating factors in the course of her narrative of the material before her, and then concluded:
“I am aware of the authorities binding upon me, where it is clearly stated that general deterrence must be a major component of any sentence imposed for these types of offences. With respect, I of course agree with those authorities and consider a custodial sentence to be the only sentence appropriate in a case of this nature. However, in this case, I think an exception can be made and a non-immediate custodial sentence imposed.”
[11]R. v. Vasin & Scherf (1985) 39 S.A.S.R. 45 at 50 per White, J.; R. v. Pilarinos [1999] VSCA 142 at [12] per Tadgell, J.A.
[12]See, for example, R. v. Nguyen & Phan [1997] 1 V.R. 386 at 389 per Brooking, J.A.; R. v. Tu Van Tran (1997) 96 A.Crim.R. 53 at 57 per Tadgell, J.A.
These cryptic remarks do little to enlighten the reader as to which of the mitigating circumstances her Honour regarded as being sufficiently influential to warrant the 9 month sentences imposed for the offences charged in counts 3, 4 and 5; nor do they illuminate what it was about those circumstances which led her Honour to regard them as sufficiently exceptional to warrant immediate release. For my own part, none of those circumstances, alone or in combination, warranted the leniency which her Honour afforded to the respondent. This necessarily follows from the view which I have formed that the sentences imposed by her Honour are manifestly inadequate having regard to the criminality involved in the respondent’s conduct. I do not intend to suggest that in every case where a person has fraudulently obtained benefits for extensive periods and has done so in the absence of pressing need, that the court imposing sentence is inevitably to regard principles of deterrence as of paramount importance in the sense that actual imprisonment must be ordered. What I do suggest, however, is that ordinarily in such cases, that will be so. In speaking of sustained and deliberate social security frauds over lengthy period, King, C.J. said – in R. v. Cameron & Anor.[13] – that “the deterrent purpose of punishment must be paramount”. His Honour said (at p.307) that:
[13](1993) 171 LSJS 305, at 306-7.
“… the courts have a great responsibility to protect the integrity of the social security system by imposing punishments for deliberate and sustained fraud which are likely to operate as a deterrent to others who may be tempted … . It is necessary for the courts to send, and consistently send, a clear signal to all who might be so tempted, that sustained and deliberate fraud upon the system will mean going to gaol.”
In the subsequent case of Kovacevic[14], the South Australian Court of Criminal Appeal, sitting as a court of five judges, reviewed the remarks made by King, C.J. in Cameron’s case. The majority said (at p.138) that they could not “fully subscribe” to “one aspect of what King, C.J. had said” – namely that, in all cases of sustained and deliberate fraud, general deterrence must be paramount. Rather, so the majority said that “in cases of sustained and deliberate fraud, deterrence must loom large in determining the appropriate sentence. But other matters, specially rehabilitation, must be considered.” The majority concluded:
“In our opinion the proper approach to sentencing is better reflected by saying that, in a case of the type referred to by King, C.J., an order for imprisonment, with at least some of the imprisonment actually to be served is ordinarily likely to be required.”
As I have said, I agree with these 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. However, here, the factors do not seem to me to be exceptional. It is true that the respondent did not have prior convictions and she pleaded guilty. But in these types of offences those factors are frequently present. In Kovacevic’s case, the prisoner’s conduct could not be regarded, in any event, as “prolonged” or “sustained” in the sense that those terms applied to this respondent’s conduct. In that case, the prisoner had voluntarily given up his offending when he obtained employment. As I have said, that was not the case here. Although reparation is a factor which the Crimes Act requires the Court to take into account, it cannot be forgotten that, in this case, the offer to make restitution was only made after the respondent was “caught”. I have no doubt that the respondent is repentant of her fraudulent conduct. That is almost always the case when those, who have been of hitherto good character, have been “found out”. However such circumstances cannot be permitted to conceal the gravity of the offending of the type which occurred here, and the requirement imposed on courts to deter it. The manifest inadequacy which, in my view, is demonstrated by these sentences can only be attributed to her Honour’s failure to give sufficient weight to principles of deterrence and, in the absence of clear reasons, the attribution of disproportionate weight to the factors of mitigation urged upon her.
[14](2000) 111 A.Crim.R. 131.
For the reasons which I have stated, I would allow the appeal and quash the sentences imposed below. In lieu thereof, I would re-impose, on counts 1 and 2, the sentences of 3 months and 6 months imposed by her Honour. On counts 3 and 4 I would impose a sentence of 18 months’ imprisonment on each count; and on count 5 I would impose a sentence of 2 years’ imprisonment. In imposing the terms which I suggest, I am conscious that the Crimes Act (Cth.) requires the Court to have regard
to the fact that remissions have been abolished in this State (s16G). I am also conscious of the restraints, emanating from the principles of double jeopardy to which I have earlier referred, which require the Court, on a Crown appeal, to impose sentences in what might be thought to be the “lower end of the range”[15]. I would direct that each of the sentences imposed commence on today’s date. The total effective sentence will therefore be 2 years. It is, I think, unnecessary to order any form of cumulation, and therefore it is unnecessary to determine Mr. Grace’s submission that we should not do so in the absence of a specific ground of appeal. I would order, in accordance with s.20(1)(b) of the Crimes Act (Cth.) that the respondent be released after serving 6 months of the sentence imposed, upon her own recognizance and in a sum of $1,000, on condition that she be of good behaviour for a period of 18 months.
ORMISTON, J.A.:
[15]Dinsdale v. R., supra, at [62].
On this Crown appeal I have had the advantage of reading the judgment of the Acting Chief Justice in draft form. For the reasons he advances, I am also of the opinion that the sentences, in particular the sentences on counts 3, 4 and 5, were manifestly inadequate and that the respondent ought to be resentenced in the manner proposed by the Acting Chief Justice. Having regard to the length of the offending and its deliberate nature, and likewise having regard to the relatively insignificant excuses or explanations put forward on behalf of the respondent, I would have imposed somewhat more stringent sentences on her, but it is here not appropriate to do so having regard to the constraints laid down for appeals of this kind.
BUCHANAN, J.A.:
I agree that the Director’s appeal should be allowed for the reasons stated by Winneke, A.C.J. and that the respondent should be resentenced as his Honour proposes.