DPP (Cth) v Parfrey
[2010] VSCA 212
•26 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0010 | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| KENNETH ALFRED PARFREY | Respondent |
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JUDGES: | BONGIORNO, HARPER and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 August 2010 | |
DATE OF JUDGMENT: | 26 August 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 212 | |
JUDGMENT APPEALED FROM: | DPP (Cth) v Parfrey (Unreported, County Court of Victoria, Judge Allen, 11 December 2009) | |
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SENTENCING – Crown appeal – Social security fraud – Use of false identity to receive overpayments totalling $202,633.57 over long period – Total effective sentence of three years’ imprisonment with immediate release on recognisance of $1000 – Whether manifestly inadequate – Significant mitigating factors – Mercy – Sentence reasonably open – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr D D Gurvich | Solicitor for Director of Public Prosecutions (Cth) |
| For the Respondent | Mr G J Thomas SC | Victoria Legal Aid |
BONGIORNO JA:
I agree with Hansen JA that this appeal should be dismissed for the reasons his Honour has given.
HARPER JA:
I also agree with Hansen JA.
HANSEN JA:
This is an appeal by the Commonwealth Director of Public Prosecutions against sentences imposed in the County Court on 11 December 2009 which the Director contends were manifestly inadequate in the circumstances. The sentences were imposed on five counts of welfare fraud committed by the respondent, Kenneth Alfred Parfrey, between June 1983 and April 1987 and then from May 1989 to February 2006.
Counts 1 to 3 alleged the receipt of benefit from the Department of Social Security, and count 5 from Centrelink, in the false name of James Johnston. Counts 1, 2 and 3 concerned the receipt of Unemployment Benefit in the false name of James Johnston while the respondent was either employed or receiving workers’ compensation in his true name, between 30 June 1983 and 22 April 1987. The three counts relate to a single chain of conduct but were separately charged because of legislative changes. Count 1 charged the offence of imposing, under s 29B of the Crimes Act 1914 (Cth), upon the Department by means of a false representation that he was not employed with a view to obtaining payment of Unemployment Benefit in the name of James Johnston, when he was employed and receiving income in his own name. Counts 2 and 3 each charged the offence, contrary to s 29D of the Crimes Act, of defrauding the Department by obtaining Unemployment Benefit in the name
of James Johnston, while concealing from the Commonwealth that he was receiving workers’ compensation payments in his true name. The amounts involved in these counts were: count 1 – $4,196.30, count 2 – $7,521.94 and count 3 – $4,159.56. It was conceded by the Crown on the plea that it was open to the judge to impose an aggregate sentence in relation to counts 1, 2 and 3 on the basis that they represented one continuing course of conduct.
Counts 4 and 5 relate to the receipt of benefits between May 1989 and February 2006. In fact, between April 1987 and May 1989 the respondent continued to receive benefits in the name of James Johnston. However he did not claim benefits from the Department in his true name until from May 1989. It is the subsequent receipt of dual benefits that is the basis of counts 4 and 5.
Count 4 charged that, contrary to s 29D, the respondent defrauded the Department by receiving Sickness Benefit, then Invalid Pension, then Disability Support Pension, then Sickness Allowance and then Aged Pension in the name of James Johnston while concealing that he was at the same time receiving Unemployment Benefit, then Sickness Benefit, then Sickness Allowance and then Disability Support Pension in his true name. Count 5 charged that, contrary to s 134.2(1) of the Criminal Code (Cth) the respondent dishonestly obtained payments of Sickness Allowance and then Aged Pension in the name of James Johnston by deception, namely that he was not receiving any other income when in fact he was receiving Disability Support Pension in his true name. The amounts involved in these counts were: count 4 – $120,702.20 and count 5 – $66,053.53.
The total amount of the overpayments was $202,633.57.
The maximum penalties for the offences were :
Count 1 - two years
Count 2 - five years
Counts 3, 4 and 5 - ten years
As is evident from the dates, the majority of the offending fell within the ten year maximum.
The respondent was sentenced as follows:
(a) on counts 1, 2 and 3 to an aggregate term of two years’ imprisonment;
(b) on count 4 to two years’ imprisonment; and
(c) on count 5 to 18 months’ imprisonment.
It was ordered that six months on counts 1, 2 and 3 be served cumulatively with count 4 and that six months of count 5 be served cumulatively with count 4, making a total effective sentence of three years’ imprisonment. The judge further ordered the immediate release of the respondent under s 20(1)(b) of the Crimes Act forthwith upon the respondent giving security by recognisance of $1,000 to comply with the condition that he be of good behaviour for three years.
In essence, it was submitted for the Crown that the sentence imposed was manifestly inadequate. That resulted from a failure to give sufficient weight to the need for general deterrence and the gravity of the offence, giving disproportionate weight to mitigating factors, and failing to give sufficient weight to the need for consistency in sentencing standards. It was submitted that an immediate term of imprisonment should have been, and now should be, imposed. In my opinion, for the reasons which follow, the appeal should be dismissed.
Circumstances of the offending
As is evident from the above outline, the offending occurred over a period of about 23 years. It involved the repeated lodgement of false claim forms, attendances at interviews and assessments and ongoing contact with the Department and Centrelink on false bases, and the use of a false identity, the perpetration of which involved the use of a false birth certificate, false Centrelink concession card, false Commonwealth Bank keycard, false Medicare card, false driver’s licence and false bank accounts. On a search of the respondent’s house he was found to have a blank birth certificate template. It was submitted by the Crown, and I consider correctly, that the offences were reflective of greed rather than need. It is to be noted that in his sentencing remarks the judge noted that the Crown relied on a number of aggravating features over and above the simple wrongful receipt of benefits, the nature of which are referred to above. Specifically, the judge referred to the following:
On 12 June 1991 you participated in a Sickness Benefits Assessment with a doctor, using the false name of James Johnston. Later, in July 1991, you lodged a claim for an Invalid Pension in the name of Johnston, together with false tax file records, a State Bank account in the name of Johnston. Again, in November 2005 you lodged an Income and Assets Review Transfer to Age Pension form in the name of Johnston. As you had done previously, you provided false documents by way of proof of identification, including a false birth certificate. As a result of this application, payments were subsequently made into a Commonwealth Bank account in your false name. The Crown contended that during the period you were receiving payments from Centrelink, you had regular contact with that organisation using the name of James Johnston. During that period you had lodged two separate Change of Address forms, one in March 1993 and another in November 1993 in the name of James Johnston. These are examples of the lengths you went to in order to fraudulently obtain these benefits.
The offences were detected as part of a Centrelink investigation in September 2005. On 9 December 2005 the respondent attended for an interview in response to a letter which Centrelink had sent to James Johnston at the postal address the respondent had provided for that name. At the interview, the respondent held himself out to be James Johnston, producing false documents to so identify himself. Those documents included a Centrelink concession card, a Commonwealth keycard and a Medicare card in the name of Johnston. Following the interview, the respondent was covertly followed and found to go to the residential address of the respondent under his true name. On 23 February 2006 a search warrant was executed at that home and various items were seized including documents and identification cards in the names of Johnston and the respondent’s true name. On 2 March 2006, the respondent was invited to participate in a record of interview as to which he was advised by his solicitor not to answer questions. However, contrary to that advice, the respondent voluntarily participated in the interview and made admissions to the receipt of payments in the name of James Johnston.
For reasons which seem not to have been explained, the respondent was not charged until late August 2008. The matter then came promptly before the Court and at a committal mention in January 2009, he pleaded guilty. The judge described that as being the earliest stage in the proceedings at which the respondent could have taken that step.
Since the time he admitted to the offences, and prior to being charged, the respondent commenced to make restitution. In 2006, he commenced making repayments at the rate of $50 per week. In September 2007 a block of land he owned jointly with his son was sold and he paid his half-share, namely $98,000, to the Commonwealth as reparation. At the time when he was sentenced, the respondent had repaid $112,209 thus leaving outstanding at that time $90,424.57. The judge noted that the respondent was continuing to make weekly payments and it is not suggested that he has ceased to do so.
Respondent’s personal circumstances
At the time of sentence the respondent was aged 67 years. He was the eldest of six children. He grew up in difficult and impoverished circumstances with his grandmother who raised him from the age of five, and three uncles. He never met his father and did not meet his mother until he was aged 29; she is now deceased. His five sisters were raised in foster-care from birth. He said that he grew up in a ‘chaotic home environment’, was subjected to physical abuse from his grandmother and lived in fear of his uncles who were alcoholic and violent.
A number of reports were placed before the judge on the plea including from Dr Cidoni, a forensic psychiatrist, Dr Burke, a neuropsychologist, a letter from the Alfred Hospital setting out his history of heart disease and orthopaedic illness, a medical history from his general practitioner including a mental health plan for a period earlier in 2009, a psychological report prepared by a clinical psychologist, and a bundle of documents from the Western General Hospital dating back to 2000 describing successful steps taken to deal with his long-term chronic alcoholism. In addition, a letter was provided from a potential employer who would provide part-time employment in the new year 2010 which would enable the respondent to continue to support himself and pay $50 a week to the Commonwealth.
The respondent’s education was noted by the judge as very limited and marred by significant difficulties, particularly with reading and writing. He repeated a number of years and eventually left school during Form 1 at the age of 13, only partly literate. Doctor Burke assessed the respondent as having an IQ of 63 which is ‘in the extremely low range, consistent with a diagnosis of intellectual disability’. Doctor Burke explained the position thus:
Mr Parfrey’s performance and verbal or language based tasks consistently fell in this low level. He demonstrated extremely impoverished word and general knowledge (extremely low range). Performance on verbal abstraction and comprehension tasks revealed that he thinks in concrete terms (extremely low range) … A measure of single word reading and spelling showed that his literacy is restricted to simple high frequency words (below Grade 4 equivalent). There was also evidence of executive dysfunction on assessment, with Mr Parfrey having severely reduced idea and strategy generation, reduced ability to switch attention between competing demands, reduced novel problem solving and mild reductions in his ability to organise complex information.
The judge referred to the following further matters in Dr Burke’s report: the respondent was six points below the level at which one would qualify for intellectual disability benefits and intellectual disability services; his current pattern of performance was likely to reflect ‘long standing low levels of cognitive function and literacy’ which have resulted in difficulties in school and limited educational attainment and are likely to reflect ‘some degree of alcohol-related brain injury’. He believed that the respondent’s low level of intellectual function was likely to result in him being ‘a person who could be easily influenced and taken advantage of by others’. He stated that the respondent finds many tasks difficult because of his ‘low level of functioning and poor literacy skills and [was] likely to have difficulty reasoning through and understanding any form of complex verbal information’. And, although his low level functioning affected his ability to judge and think clearly as to his actions, his intellectual disability was not such that he would not understand the difference between right and wrong. But, Dr Burke considered he would not have had the ability to set up the fraud scheme himself.
The respondent has worked in a number of unskilled occupations and has had had two significant relationships, one of which produced three children and with all of whom he is on good terms, and he has grandchildren. They were present during the plea as was his former de facto wife who provides him with accommodation.
The respondent has a long history of alcohol addiction, going back to his teenage years. The material provided to the judge indicated that the respondent’s high level of drinking led to him suffering a breakdown which resulted in him being hospitalised at the Western General Hospital in the late-1990s, the records of which indicate that he was successfully treated for his alcohol addiction. Abstinence for three-and-a–half years was followed by a relapse into alcohol abuse and the respondent had been drinking for six or seven years prior to sentence, but in recent times was under control.
The respondent has suffered chronic depression with associated anxiety for over 40 years. The judge found that the respondent was thus afflicted throughout the offending period. He accepted the evidence of Dr Cidoni that the illness would have had ‘some impact’ upon his capacity to exercise appropriate judgment and to think clearly. He also took into account evidence of Dr Cidoni that there would be ‘a significant risk’ that if he was incarcerated his depressive symptoms would worsen with a risk of suicide, given a prior history of suicide attempts. He also accepted Doctor Cidoni’s evidence that because of the respondent’s chronic depressive illness and associated anxiety it would render imprisonment more burdensome for him than a prisoner not suffering from such illness.
Some further evidence of Dr Cidoni is to be noted. He doubted that the respondent could have organised the scheme without assistance, but once exposed to the process of how to circumvent the system, he would be able to continue and expand it.
The judge found, in light of the evidence, that in addition to his psychiatric illness, the respondent’s intellectual impairment had to some extent affected his capacity to make proper judgments, which was also relevant to the assessment of his moral culpability. He found that, over and above the mental illness, the respondent’s intellectual disability would be likely to make the circumstances of incarceration more onerous bearing in mind that he would be easily influenced and taken advantage of by others and find many tasks difficult.
In addition to the conditions referred to above, the respondent suffers from severe osteoarthritis in both knees as a result of an industrial accident and which occasions significant ongoing pain and restriction in movement. He also suffers chronic heart and coronary disease, gastric ulcer, poor eyesight, deafness, arthritis in the hands and hypertension. By reason of these matters also, but particularly the osteoarthritis in the knees, the judge found that the respondent would find incarceration more onerous than would a person in normal health.
It remains to mention that the respondent had prior convictions between 1961 and 1997, some of which involved dishonesty, the last such conviction being in 1981 and since then drink driving offences and one charge of driving while disqualified. The judge said that he gave these matters very little weight because of their age and lack of relevance to the subject offending. Counsel did not attack that approach.
Submissions
Counsel for the Crown referred to certain provisions of the Crimes Act. Section 16A(1) provides that a court must impose a sentence that is of the severity appropriate in all the circumstances of the offence and sub-s (2) sets out a non-exhaustive list of relevant matters to be taken into account. That list does not include general deterrence but it is accepted that general deterrence is to be taken into account.[1]
[1]See DPP (Cth) v El Karhani (1990) 21 NSWLR 370.
In addition, and importantly, s 17A(1) provides that a court shall not pass a sentence of imprisonment unless, after considering all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case.
Counsel submitted that the sentencing disposition revealed that the judge must have given too much weight to the personal circumstances of the respondent, and too little weight to elements of general and specific deterrence and inadequate consideration to other sentences. The sentence, he submitted, manifestly underestimated the culpability of the respondent in the systematic and sustained cheating of the welfare system for the purpose of his personal gain and on the basis of repeated false assertions to the Department and Centrelink. The sentence, it was said, failed to incorporate ‘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 … that such conduct will not be tolerated by the courts’.[2] Counsel accepted that general deterrence was to be sensibly moderated consistently with the principles in R v Verdins,[3] in particular that the respondent’s moral culpability was reduced by his psychiatric illness and intellectual impairment, and that a term of imprisonment would weigh more heavily on him than on a person of normal health. However, general deterrence remained an important, if not the most important, relevant sentencing principle.
[2]DPP (Cth) v Milne [2001] VSCA 93, [12].
[3](2007) 16 VR 269.
Specific deterrence and denunciation were to be regarded as particulars of the contention of manifest inadequacy.
Counsel acknowledged the presence of the mitigating factors mentioned above. However, the credit to be given the early plea of guilty and the making of admissions was balanced to an extent by the fact that the frauds came to an end not by reason of the respondent’s voluntary disclosure but as the result of a check by Centrelink. Furthermore, the respondent’s reparation commenced only after his fraud was discovered.
Finally, counsel relied on the need for consistency in sentencing. As to this, the prosecutor had provided a table of prior sentences to the sentencing judge which he evidently took into account. Before us counsel provided a further and more extensive table of sentences imposed not merely in Victoria but within the Commonwealth. It was submitted that uniformity in sentencing, both within Victoria and the Commonwealth generally, is desirable. In my view, that may be accepted as being important in relation to the maintenance of public confidence in the law.[4] It was submitted that an analysis of recent decisions supported the proposition that ordinarily one can expect to receive a term of immediate imprisonment in a case of the present type.
[4]See R v Tran (2007) 172 A Crim R 436; Leeth v Commonwealth (1992) 174 CLR 455; Wong v The Queen (2001) 207 CLR 584, [6]-[7].
Counsel for the respondent submitted that the sentencing disposition adopted by the judge was open to him, and that there was no absolute rule that in a case of the present type, even with the aggravating features that it possessed, the offender must receive an immediate term of imprisonment. See DPP (Cth) v Milne[5] where Winneke P allowed that there may be exceptional cases where mitigating factors outweigh the necessity of an actual term of imprisonment. Here there were factors which, when taken together with the following further matters, warranted the judge taking the course that he did. Those additional matters were the respondent’s regret and remorse in relation to his offending and which is reflected in his restitution and, in addition, to his not accepting a pension from the Commonwealth believing that he does not deserve it. It should be said as to that latter matter of voluntarily not accepting a pension that his pensions (that is for both Johnston and himself) were cancelled in 2006 and an appeal against such cancellation was dismissed in September 2006. Nevertheless, the judge expressed himself as having no doubt as to the depth and genuineness of the respondent’s remorse and contrition. A further additional factor, evident in the chronology referred to earlier but not thus far repeated, was the significant delay between the time when the respondent made admissions and the time when he was sentenced.
[5][2001] VSCA 93, [16]. See too DPP (Cth) v Alateras [2004] VSCA 214.
Finally, in addition to balancing the various mitigating factors against the circumstances of the offending, the judge had also taken into account and exercised the judicial discretion of mercy, which was appropriate in the circumstances.[6]
[6]DPP v Carter [1998] 1 VR 601; R v Osenkowski (1982) 30 SASR 212, 213.
Decision
An important aspect of the Crown’s submission was the desirability of consistency in sentencing. It was for that reason that we were taken to the table which recorded a significant number of sentencing dispositions, at trial and on appeal, in welfare fraud cases. As I have said, the list provided to us was different to and more comprehensive than that provided to the sentencing judge. Each list included a variety of sentencing dispositions, and in particular a number of orders for immediate release on recognisance. I do not think that the sentencing dispositions disclosed in the tables indicate that the disposition in this case was not open or, to put it another way, was demonstrably not in line with sentences imposed in other comparable cases. Indeed, the tables tend to reflect that which one would expect, namely that individual sentencing dispositions are conditioned by the circumstances of the particular case, as they ought to be.
There is another factor in the consideration of the sentences in these tables. That is whether the practices, and relevant law, concerning sentencing and the custodial or corrections systems under which prisoners are held are identical in the several jurisdictions of the Commonwealth. If such tables are to be relied upon there needs to be information and assurance on this aspect. To put it simply, does a sentence for a period of actual imprisonment operate for the same term in the jurisdiction in question. Nevertheless, I have considered the information in the tables, but the limitations are such as I have mentioned. And, furthermore, the present sentence is not evidently shown to be out of line with prior exercises of the sentencing discretion.
The judge is seen on the transcript on the plea and in his sentencing remarks to have approached the sentencing exercise with great care as to whether it was open to him not to impose an immediate term of imprisonment. He was informed by the prosecutor, correctly, that in an appropriate or exceptional case there was the power to so order and it is evident that he gave anxious consideration to both that issue and to whether it was appropriate in the circumstances to exercise such power.
Furthermore, it is apparent from the sentencing remarks that the judge took into account all relevant considerations and the various factors one way or the other as to the imposition of an immediate term of imprisonment and, of course, the individual sentences. Of course these were serious offences and the judge so regarded them. Indeed he told the respondent that, generally speaking, the conduct that he had engaged in would ‘be met with the imposition of a lengthy period of imprisonment to be served immediately, unless compelling mitigating circumstances are demonstrated’.
It is important to note that no criticism was made by the Crown of the individual sentences or, indeed, of the total effective sentence. That is not surprising as the total effective sentence was in fact within the range suggested to the judge. The real point of the attack was that appropriate assessment of the various sentencing considerations ought have resulted in the imposition of a term of immediate imprisonment. While generally speaking that may be so, I am of the view that in the very particular circumstances of this case it was within the range of sentencing dispositions open to the judge to immediately release the respondent, as he did. Of course it was merciful, indeed very much so, but the question is whether that disposition was not open, and in my view it was. In this regard it is not to be overlooked also that a wholly suspended sentence does play a role in deterring others.[7] Accordingly, I am of the view that the appeal ought be dismissed.
[7]DPP v Buhagiar and Heathcote [1998] 4 VR 540, 548; DPP v Carter [1998] 1 VR 601.
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