Durante, Kurt Russell v The Queen

[2009] NSWDC 157

CITATION:	Lewis, Mandy Jayne v R [2009] NSWDC 157
JUDGMENT DATE:	23 June 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The sentence of the Magistrate is set aside. Instead of that sentence, under s 19B(1)(d) of the Crimes Act 1914, Ms Lewis is discharged, without proceeding to conviction in respect of all three charges upon her giving security in the sum of $500 without sureties by a recognisance that she will comply with the following conditions : (a) be of good behaviour for 2 years; (b) make reparation in respect of the offences in the sum of $7,522.08 by instalments of $20 a fortnight.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - obtain financial advantage from a Commonwealth entity - application of s 19B Crimes Act 1914 - construction of "inexpedient to inflict any punishment" - breadth of considerations
LEGISLATION CITED:	Crimes Act 1914 s 16A, s 19B Crimes (Appeal and Review) Act 2001 s 20(2) Criminal Code Act 1995 s 135.2(1)
CASES CITED:	Cobiac v Liddy (1969) 199 CLR 257 Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
PARTIES:	Mandy Jayne Lewis R
FILE NUMBER(S):	2009/12/699
SOLICITORS:	Commonwealth Director of Public Prosecutions

JUDGMENT

1. Mandy Jayne Lewis has appealed to me from the sentence imposed by a Magistrate. She had pleaded guilty to some offences under the Criminal Code of the Commonwealth on 24 February 2009. The Magistrate sentenced her on 7 April 2009. The Magistrate convicted Ms Lewis of the three charges and sentenced her, in effect, to a good behaviour bond under the terms of s 20 of the Crimes Act 1914 of the Commonwealth. In addition the Magistrate made a reparation order and ordered costs and made an order for fingerprinting of Ms Lewis.

2. The offences which she was convicted of and sentenced for are called engaging in conduct resulting an obtaining a financial advantage for herself from a Commonwealth entity. The statement of facts which was included in exhibit A indicates that Ms Lewis was receiving support from the Commonwealth in the form of a payment called Parenting Payment Single. She had been receiving it intermittently since 1996. Between 14 June 2005 and 6 November 2007 she was receiving that income from the Commonwealth at relevant times but at the same time for some of that period she was receiving income from employment or other government agencies. She was required as a recipient of Parenting Payment Single to disclose to Centrelink the relevant Commonwealth agency circumstances relevant to calculating her payment. Centrelink in turn uses that to calculate the correct benefit.

3. The facts are that there were, in that period that I mentioned, twenty-four relevant fortnights of payment from Centrelink. For three periods within that overall period she either failed to report her employment or her income or under-declared her income. For each of those three periods she was charged with an offence under s 135.2(1) of the Criminal Code of the Commonwealth. The three periods representing the offences were 14 June 2005 until 21 July 2005, 18 August 2005 until about 27 March 2006 and 9 October 2007 until about 6 November 2007. For eighteen of those twenty-four fortnights she omitted to report her employment or her income at all. For six fortnights she substantially under declared her income. The total benefit which was paid to her which ought not to have been paid was $7,522.08. Centrelink periodically send notices to people such as Ms Lewis reminding them of the obligation to keep Centrelink informed of their personal circumstances.

4. Ms Lewis in her case tendered one document which was a medical certificate issued by WorkCover New South Wales confirming that she was unfit for work as a result of a work related injury from 1 May 2005 until the end of June 2009. Attached was the report of an MRI of her lumbar spine confirming her injury.

5. Ms Lewis’s main point is that she does not want a penalty which involves a conviction. She has - as she points out and is confirmed by Mr Hazelton who appears for the respondent prosecutor - no previous convictions. Ms Lewis indicates that she is happy to be subjected to a bond but wishes to avoid a conviction on her record. Having qualified as an enrolled nurse in the UK, she is retraining undertaking courses in professional counselling at TAFE as well as a Certificate in Drug and Alcohol and a Bachelor of Science for Counselling as well as a Certificate in Workplace Training and Assessment. She is interested in securing employment in the future as a security officer and dog handler. A criminal record would diminish her capacity to undertake work in the health or welfare area as well as significantly in any work in the security related industry.

6. She has committed herself to her desire to work as a dog handler and has owned and is arranging to have trained her own dog at the moment. Her employment opportunities are somewhat restricted as a result of the injury which is the subject of the medical certificate and the MRI report. That was an injury which occurred when she was assisting a patient at one of the places where she was working from which she failed to declare or under-declared her income. She is seeing a neurosurgeon in the near future to discuss the possibility of an operation. She has, as well, a history of severe depression and is presently seeing a psychiatrist and taking medication for that condition as well. She accepts full responsibility and regrets her actions.

7. In effect, she is asking me for an order, under s 19B of the Crimes Act 1914, discharging her without proceeding to a conviction upon her giving security by recognisance that she will comply with certain conditions.

8. Mr Hazelton points out that offences such as these are regarded seriously by the higher courts. The Court of Criminal Appeal has made it very clear that such offences against the Commonwealth should normally attract a gaol sentence regardless of whether the offences are committed because of the needy circumstances of the offender or because of the greed of the offender. Seven thousand dollars should be regarded as a significant amount of money. As Mr Hazelton points out, the sentencing options usually commence with custody and then a judicial officer needs to be satisfied that anything less than custody is appropriate. It is in that context that he makes the submission that follows that an order under s 19B discharging Ms Lewis would be very lenient sentence.

9. Part of exhibit A, which were the documents before the Magistrate, is a very comprehensive psychological assessment of Ms Lewis by a social worker, named Jennifer Brown, at the Legal Aid Commission of New South Wales. It is dated 3 April 2009. It sets out a large amount of detail regarding Ms Lewis’s personal history. Ms Lewis confirmed that history from the bar table.

10. She had a difficult childhood with her mother entering into another relationship with a man who sexually assaulted her and her brother. Ms Lewis has two children both of them girls, the younger is aged fifteen and still at home. The elder daughter herself has a child, a boy named Josh who was born in 2006. This daughter of Ms Lewis’s has had an unstable history of relationships and for a time Ms Lewis was herself looking after Josh. In addition, Ms Lewis herself has been in the past in an abusive relationship. The relationship between her and her elder daughter, the mother of Josh, has also been very difficult over the years.

11. The report lists a number of significant problems with Ms Lewis’s health which, as the report said, impacted upon her psychological health. A wedding was called off at the end of 2005 when she discovered that her fiancé was being unfaithful; her house caught fire; her mother died in early January 2006 and she was unable to return to the UK; she was involved in a car accident in February 2006 and lost her car and had difficulty with the insurance claim. That series of events as described by the social worker impacted greatly on Ms Lewis resulting in a breakdown and a suicide attempt. She was admitted to Port Macquarie Hospital and monitored and placed on medication. The mental health team were very supportive and she has successfully rehabilitated from the state that she was in at that time. She sustained the work injury that I have referred to in 2008. She experiences chronic pain which affects her sleep and it leads to flashbacks regarding her experiences as a young girl.

12. As I said she is actively undertaking courses in order to retrain herself for a better future. She is still on a Commonwealth benefit and is repaying $20 a fortnight but, as Mr Hazelton pointed out, as a matter-of-fact the debt is going to a previous debt to the Commonwealth and as yet she has not been in a position to repay any arrears from the debt which is the subject of this case.

13. The social worker reports - which Ms Lewis confirms - that she was working shifts which made it difficult for her to estimate her income. She had poor mental health during much of the time of the period of her offences. The social worker reports that Ms Lewis has in her life experienced great loss and suffered psychologically which has had a range of lasting emotional consequences resulting in a serious depression and anxiety condition. The social worker saw her as a resilient person wanting to support herself and her children. With professional support she has survived to adjust and manage for herself and her children and wishes to make a contribution to the community despite her own health challenges.

14. Mr Hazelton helpfully referred me to a decision of the New South Wales Court of Criminal Appeal in the Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568. In a judgment delivered by the Chief Justice, with whom Simpson J and Einfeld AJ agreed, the Court reviewed the circumstances in which s 19B of the Commonwealth Crimes Act - the section Ms Lewis is asking me to apply - should be interpreted. The Chief Justice referred to a decision of the High Court in Cobiac v Liddy (1969) 119 CLR 257. His Honour said that other than by reason of the applicability of s 16A of the Commonwealth Crimes Act, s 19B(1)(b) is relevantly in the same terms as the legislation considered by the High Court in that case which had upheld, by majority, the exercise of the Magistrate’s discretion. The Chief Justice said at [21]:

“The joint judgment in Cobiac v Liddy establishes that the list of relevant considerations for determining the issue of “expediency” is broader than the list of matters specifically listed as factors to which the Court must have regard.”

His Honour then referred to a judgment of Sir Victor Windeyer, who is not part of the joint judgment, and after quoting from that passage the Chief Justice went on to say at [23]:

“This last reference to the ‘whole of the circumstances of the offender and the offence’ opens up a wide range of factors as relevant to the exercise of the statutory discretion. It appears that his Honour, like the judges who signed the joint judgment, did not take a narrow view of the scope of the relevant considerations, notwithstanding his Honour’s reference to the need for one or other of the specified factors to themselves be of sufficient significance to justify the finding of the expediency.”

The Chief Justice concluded at [29] as follows:

“These authorities clearly indicate the breadth of the considerations relevant to the determination of inexpediency. For the purposes of Commonwealth offences that breadth is confirmed by s 16A(2). It is the matters identified in that subsection which a Court exercising the power in s 19B(1) must take into account.”

15. Turning to the application of s 19B to this case, I need to be satisfied that the charge is proved which I am in this case as the result of the admissions and the plea of guilty. If I am of the opinion - having regard to certain matters - that it is inexpedient to inflict any punishment, then I may make the order which Ms Lewis seeks. I am to have regard, in exercising that discretion, to a number of alternative factors. The factors which I regard as relevant in this case are Ms Lewis’s health and mental condition and I regard the offences as having been committed in this case under extenuating circumstances. Although, as Mr Hazelton correctly pointed out, the first offence commenced in June 2005 whereas Ms Lewis’s health started to significantly deteriorate at the end of 2005, she was carrying the personal emotional burden of her own upbringing as well as dealing with her relationship with her elder daughter. For much of the period it seems to me that the offences were committed she was undergoing significant personal difficulties so far as her own life and mental health were concerned resulting, as I said, at one stage in a breakdown and suicide attempt. These are very significant factors.

16. Taking my lead from the Chief Justice’s judgment in Baffsky’s case I regard the factors relevant to the exercise of my discretion as to whether it is inexpedient to inflict punishment as being broader than the factors listed and to which I have already referred. In this case I regard it as relevant that Ms Lewis is making every effort to redress the difficult background and personal circumstances which she has undergone, in retraining herself to become more employable in the future. She is doing that on a number of fronts including a commitment to training a dog for the purposes of becoming a dog handler. As she points out it makes sense that a conviction which involves a question of dishonesty would clearly impact on her ability to secure employment in the security industry - indeed any conviction may have such an impact in that industry - but it would also impact on her ability to secure employment in other industries as well. Taking into account her health, mental condition and extenuating circumstances in which she committed the offences and her efforts to become more employable I regard it as inexpedient to inflict any punishment in this case.

17. I, therefore, propose to allow the appeal and in due course I will discharge her or make an order providing for a conditional discharge.

HIS HONOUR: Now, I just step away from the reasons, Mr Hazelton and Ms Lewis, I will just ask you whilst I make these formal orders to think of any particular conditions that you might think are helpful and I just proceed to formalise the order. Have a seat.

18. Accordingly, under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the Magistrate. Instead of that sentence, under s 19B(1)(d) of the Crimes Act 1914, I discharge Ms Lewis without proceeding to conviction in respect of all three charges upon her giving security without sureties by a recognisance that she will comply with the following conditions:

(a) That she will of good behaviour for two years;

(b) That she will make reparation in respect of the offences in the sum of $7,522.08 by instalments of $20 a fortnight.

19. I will stop there. I should also add as part of my reasons that I have taken into account the provisions of s 16A of the Crimes Act 1914 and I regard the order which I have made as of a severity, for the reasons which I have given, appropriate in all the circumstances of the offence and I have specifically taken into account under s 16A(2)(m) Ms Lewis’s means and under (n) her prospects of rehabilitation.

HIS HONOUR: I will stop there. Mr Hazelton, I will ask you first. I said that it should be by recognisance is that how it’s normally done?

HAZELTON: That’s correct, your Honour, the only thing I would add to the order is that usually, well, I understand that it is necessary for you to make the order with respect to security in an amount. You’ve discharged the defendant upon giving security, the security should be an amount.

HIS HONOUR: What sort of amount is it?

HAZELTON: I believe it is in the Court’s discretion, your Honour, but I don’t accurately know.

HIS HONOUR: That’s all right, is the security a promise to pay it’s not like a deposit?

HAZELTON: It is a promise to pay. If the defendant forfeits on the order, say she breaches the bond, then the amount is automatically in default.

HIS HONOUR: All right, I have in mind $500. Security in the sum of $500. I’ll hear you in a moment, Ms Lewis, and I have ordered reparation. What about Probation and Parole, do you have a view about that or not sure one way or the other.

HAZELTON: That is unusual, your Honour.

HIS HONOUR: I don’t think it’s necessary in this case, I think she seems to be looking after herself.

HAZELTON: But in any regard the order under 19B doesn’t require that you make conditions with respect to parole and probation. Perhaps it might have been.

HIS HONOUR: No, it’s an option, it’s just an option, yes. All right, thanks, Mr Hazelton.

20. Now, Ms Lewis, what I’ve done is allow your appeal. I’ve given you a discharge. I’m putting you on a bond for two years. There is no conviction. This is a bond to be of good behaviour. You’ve got to stay out of trouble for two years. I’ve made an order that you have to repay the $7,000-plus by $20 a fortnight.

APPELLANT: Yes, your Honour. Would that be $20 on top of $20 I pay now?

HIS HONOUR: How much have you got left to pay now?

APPELLANT: I don’t know, your Honour, to be honest.

HIS HONOUR: No, I think what I’ll do is order that once you have repaid your present debt then after your present debt is repaid then you commence to repay this debt $20 a fortnight. I’m thinking that I don’t need to send you to Probation and Parole unless you think that’s a good idea.

APPELLANT: No, your Honour.

HIS HONOUR: I don’t think so because you’ve got your own health professionals that you’re seeing and getting advice from.

APPELLANT: Yes, your Honour.

HIS HONOUR: Is there anything you want to say about those orders which I suggested?

APPELLANT: The security deposit of $500 what does that mean? Does that mean I have to pay that?

HIS HONOUR: It’s not a deposit, you don’t have to pay it unless you default.

APPELLANT: Okay.

HIS HONOUR: Then you’re up for $500.

APPELLANT: Okay.

HIS HONOUR: Do you understand that?

APPELLANT: Yes, your Honour, yes, thank you.

HIS HONOUR: Do you want to say anything about that?

APPELLANT: No, your Honour.

HAZELTON: Could I suggest, your Honour, in the State jurisdiction it usually expresses an agreement to forfeit rather than a security.

HIS HONOUR: Yes, I’m just reading the legislation here. That’s a good way of putting it, it’s an agreement to forfeit, isn’t it, yes.

HAZELTON: Yes, sometimes I’ve found in offices there can be a problem with the use of the word “security.”

HIS HONOUR: Thank you.

HAZELTON: In some respects in the Commonwealth, your Honour, the security of giving of the security is the security itself, we do insist upon a monetary value being attached to that security.

HIS HONOUR: All right.

21. I put, upon her giving security (that is agreeing to forfeit) the amount of $500.

HIS HONOUR: I think that clarifies it, thanks Mr Hazelton.

Do you understand all of that?

APPELLANT: Yes, your Honour.

HIS HONOUR: What do you want to ask?

APPELLANT: What actually happens to my fingerprints that were taken?

HIS HONOUR: That’s a good question. Do you have an answer to that?

APPELLANT: And does that mean as from today I don’t have a criminal record so if there was a criminal record check done.

HIS HONOUR: It means that, yes, because you don’t have a conviction. I’ve set aside the order which includes the conviction and I have made an order without proceeding to conviction so you have no convictions. The fingerprint order is made under s 3ZL of some Act.

HAZELTON: It’s the Crimes Act once again, your Honour.

HIS HONOUR: I don’t have all of that, there may well be some provision of what happens on appeal, if someone is successful on appeal.

APPELLANT: I mean, because like those fingerprints would only be used like if I burgled somewhere or did something wrong which I’m not going to do.

HIS HONOUR: I understand that but you’ve raised a fair question.

APPELLANT: Yes, I just wondered.

HAZELTON: Your Honour, I can look into this. I can get some instructions from the office, I don’t know the answer, myself, but I can--

HIS HONOUR: There’s nothing in the statute about it?

HAZELTON: There is a provision for destruction of identification material. It says:

“ If identification material has been taken from a person under s 3J ”

section 3ZL is what we’re considering here.

HIS HONOUR: Do you mind if I have a quick look at that Act?

HAZELTON: Yes, certainly, your Honour.

HIS HONOUR: I would be grateful if you could look into that. I’m not sure how, yes, it’s not obvious.

HAZELTON: Would I be able to inform your Honour in Chambers subsequently and perhaps we could then - because I would need to return to the office another matter will come on, is it possible for me to contact you after this afternoon to inform you and we can inform--

HIS HONOUR: Yes, but we would have to keep Ms Lewis in on it as well.

HAZELTON: Right, well, could I inform Ms Lewis of the outcome?

HIS HONOUR: Yes, do you have an email or a phone number?

APPELLANT: Yes, I do, your Honour.

HIS HONOUR: Email?

APPELLANT: Yes, your Honour.

HIS HONOUR: That’s handy. My associate will give you her card or give it to both of you, one each, which has her email address. Would you send me an email as a result of your research? Send it to her, my associate, and copy it to Ms Lewis so she knows what’s going on and if she wants to can make any submission if she wants to and then I’ll indicate through my associate how I’ll deal with it. It might be that we can’t do anything, there’s no power for me to do anything I don’t know. But Mr Hazelton is going to check it to see whether there is any power for me to do anything.

APPELLANT: Okay, thank you very much.

HIS HONOUR: Is there anything else you want to ask?

APPELLANT: Yes, now the good behaviour bond I’ve already got for 12 months for the previous case.

HIS HONOUR: Yes, that’s gone, I’ve set that aside.

APPELLANT: Do I need to go to the Registry to go back on another good behaviour bond for two years?

HIS HONOUR: Yes.

APPELLANT: What happens with the court costs, I have to pay from the last court case, I can go and sort that out now because--

HIS HONOUR: I haven’t ordered any court costs.

APPELLANT: Okay, but what about from the last court case?

HIS HONOUR: No, I set that aside. Have you paid any of that?

APPELLANT: No, not yet because when I appealed--

HIS HONOUR: No, look, I think you’ve got enough to pay, they were $128 weren’t they?

APPELLANT: Yes.

22. No, I’m not going to order you to pay those. I should but I’m not going to, no. I’ve got to explain it to you and I think you do understand. You’ve got a good behaviour bond if you mess up, misbehave yourself, get into trouble, you’ll be back before me and I can sentence you to something more serious and you’ll have a conviction. You have no conviction. You’ve got to be of good behaviour for two years and you have been ordered to pay the $7,000-plus, $20 a fortnight commencing after your present debt has been paid off and you’ve got to enter into a security for $500 which is a promise to forfeit that amount, that is, pay that amount if you breach the bond. Do you understand all of that?

APPELLANT: Yes, your Honour, thank you very much.

HIS HONOUR: Anything else, Mr Hazelton?

HAZELTON: No, your Honour.

HIS HONOUR: That’s it, Ms Lewis, now you’ll need to go to the Registry, is that right?

APPELLANT: Level 4, your Honour.

HIS HONOUR: Level 4 of the Downing Centre and my associate probably has to prepare the order, is that right, which I sign and how does that get down to the Registry? Then you take it down, do you? I wonder if Ms Lewis might be able to take it down once I sign it. No, you should, okay.

If you go down you’ll have to wait.

APPELLANT: Okay.

HIS HONOUR: I have to sign this order and then it will be taken down and then they’ll do it down there, all right?

APPELLANT: Just one more thing, your Honour, my workers medical certificate and my MRI results could I possibly take that back?

HIS HONOUR: You want that back? Yes, you can.

APPELLANT: Yeah, because that’s the only copy that I have.

HIS HONOUR: I return exhibit 1 to Ms Lewis.

APPELLANT: Thank you very much, your Honour.

HIS HONOUR: Good luck.

APPELLANT: Thank you very much.

HIS HONOUR: Thanks, Mr Hazelton, for your assistance.

HAZELTON: Thank you, your Honour.

**********