Guerrero v Dickson
[2013] WASC 246
•28 JUNE 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GUERRERO -v- DICKSON [2013] WASC 246
CORAM: HALL J
HEARD: 21 JUNE 2013
DELIVERED : 21 JUNE 2013
PUBLISHED : 28 JUNE 2013
FILE NO/S: SJA 1048 of 2013
BETWEEN: MIGUEL GUERRERO
Appellant
AND
JANE KATHERINE DICKSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R S HUSTON
File No :PE 52136 of 2012, PE 52137 of 2012, PE 52138 of 2012, PE 52139 of 2012
Catchwords:
Criminal law - Appeal against sentence - Social security fraud - Prosecution appeal - Whether s 19B Crimes Act 1914 (Cth) discharge manifestly inadequate
Legislation:
Crimes Act 1914 (Cth)
Result:
Leave to appeal granted
Appeal allowed
s 19B order set aside
Respondent to be re-sentenced
Category: B
Representation:
Counsel:
Appellant: Ms S J Oliver
Respondent: Mr C Miocevich
Solicitors:
Appellant: Director of Public Prosecutions (Cth)
Respondent: Miocevich Law Offices
Case(s) referred to in judgment(s):
Arkrie v Director of Public Prosecutions (Cth) [2012] WASC 200
Brown v CDPP [1999] SASC 195
Chan (1989) 38 A Crim R 337
Cobiac v Liddy (1969) HCA 26; (1969) 119 CLR 257
Dinsdale v The Queen (2000) HCA 54; (2000) 202 CLR 321
Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997)
Esplin v Ruffan [2008] WASC 42
Eva v CDPP [1999] SASC 185
F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125
Gok v The Queen [2010] WASCA 185
Harding v Moreland [2006] WASC 8
Hayward v Hubbard [2000] WASCA 416
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Kelton v Uren (1981) 27 SASR 92; (1981) 52 FLR 232
Kovacevic v Mills (2000) 76 SASR 404;
Krijestorac v The State of Western Australia [2010] WASCA 35
Lanham v Brake (1983) 34 SASR 578
Laxton v Justice (1985) 38 SASR 376
Lutter v Hubbard [2000] WASCA 248
Macri v Moreland [2008] WASC 194
Matta v The Australian Competition and Consumer Commission [2000] FCA 729
McDougall v The State of Western Australia [2009] WASCA 232
McInnes v Global Imports Pty Ltd (1992) FCA 590; (1993) ASC 56‑199
Moreland v Snowdon [2007] WASC 137
Nelson v Quinn [2001] WASCA 297
Nolan v Jarvis [2006] TASSC 64
Norton v The Queen [2003] WASCA 86
Nunn v Kinnon (1988) 4 WAR 459
O'Brien v MR Norton‑smith Pty Ltd (1995) TASSC 78; (1995) 83 A Crim R 41
Paterson v Fenwick (1994) ACTSC 25; (1994) 115 FLR 426
R v Rossi (1988) 4 WAR 463
R v Sinclair (1990) 51 A Crim R 418, 430
R v Tsiaras [1996] 1 VR 398
R v Weller (1988) 37 A Crim R 349
Ralph v Nawrojee [2003] WASCA 5
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Uznanski v Searle (1981) 26 SASR 388; (1981) 52 FLR 83
Wheeler v The Queen [No 2] [2010] WASCA 105
HALL J:
Introduction
On 21 June 2013 I allowed this prosecution appeal against sentence. My reasons for allowing the appeal are as follows.
On 1 February 2013, the respondent pleaded guilty to four counts of obtaining a financial advantage in circumstances where she knew or believed that she was not eligible to receive that financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). A pre‑sentence report was ordered and the proceedings were adjourned.
On 15 March 2013 the magistrate heard submissions on sentence from the prosecution and counsel who appeared for the respondent. His Honour considered that it was open to him to discharge the respondent pursuant to s 19B of the Crimes Act 1914 (Cth). The prosecution opposed that course, in particular due to the serious circumstances of the offending. Notwithstanding that opposition, his Honour discharged the respondent without recording a conviction but with a requirement that she enter into a recognisance in the amount of $2,500 to be of good behaviour for a period of two years.
On 12 April 2013 the prosecution filed an appeal notice seeking leave to appeal against the order made by the magistrate discharging the respondent under s 19B of the Crimes Act. Whilst such an order is not in strict terms a sentence the rights of appeal that exist in respect of sentences are applicable to such an order: s 19B(3)(b)(ii). The prosecution may appeal to this court against a sentence alleged to be inadequate, subject to the requirement that leave is required in respect of each ground of appeal: s 7, s 8 and s 9 of the Criminal Appeals Act 2004.
On 31 May 2013 a consent notice signed on behalf of the appellant and the respondent was filed. That notice consented to an order being made in the following terms 'that the learned magistrate erred in law in his application of the test outlined in s 19B of the Crimes Act and could not be satisfied that the terms of that section were met'. That notice is a concession on behalf of the respondent that ground 1 should succeed. That concession was confirmed at the hearing of the appeal. For the reasons that follow I am satisfied that that concession was properly made. I am also satisfied that ground 2, being that the s 19B discharge was manifestly inadequate, has also been made out.
Facts
The respondent has been in receipt of social security benefits intermittently since October 1997. Between 7 May 2008 and 29 July 2011 she was in receipt of Newstart Allowance. This is an allowance payable to persons actively seeking full time work. One of the obligations of recipients of Newstart Allowance is the reporting of any change in circumstances. This includes, reporting any income earned from employment. The respondent was required to report such income to Centrelink on a fortnightly basis.
Between 5 March 2008 and 28 May 2010, the respondent worked for Social Data Australia on a casual basis. On 24 June 2011 she commenced employment with Quickflix, initially on a casual basis but subsequently on a full time basis.
During the four periods covered by the charges the respondent failed to fully report her earnings from employment. Those periods were 7 May 2009 to 14 January 2009, 25 February 2009 to 31 December 2009, 27 January 2010 to 29 December 2010 and 15 June 2011 to 29 July 2011. The total gross earnings of the respondent during those periods was $42,439.01. This represented an average of $633.41 per fortnight.
The respondent reported her income by completing application forms on 57 occasions and using Centrelink online declarations on 28 occasions. In these declarations the respondent only declared total earnings of $15,872.70. Accordingly, she under declared her income by $26,566.31.
As a result of the respondent failing to declare her full amount of income she was overpaid Newstart Allowance in the total amount of $16,277.81. The offences were discovered by way of data matching with the Australian Taxation Office and were confirmed by a subsequent investigation by Centrelink. In the course of that investigation the respondent was invited to an interview with investigators but she failed to respond to that offer.
As at the date of sentencing the respondent had repaid a small amount of the money and had entered into an arrangement to pay $25 on a 'regular basis'. The amount outstanding as at 15 March 2013 was $14,169.61.
Personal circumstances
At the time of sentencing, the respondent was 34 years of age. She was no longer on Newstart benefits as she had obtained full time employment as an administrative officer with an accounting firm.
It was submitted that the respondent had previously had major issues with depression. A medical certificate was tendered which confirmed that she was being treated for that condition. It was said that she had also suffered from 'deep depression' at the time of the offending and had made 'a series of very immature and bad decisions'. The respondent's counsel then said:
[S]he can't really explain why she did commit the offences, but all she can say, your Honour, is that once she obtained a full time position, which was a previous position, she did stop committing these offences of her own accord. Ms Dickson is extremely remorseful to be before your Honour. This charge has bought shame not only to her, your Honour, but her family as well and her previous work colleagues who had to be made aware of this particular conviction.
It was submitted on behalf of the respondent that she had entered a plea of guilty at the earliest opportunity. The prosecution notice indicates that the respondent first appeared on 23 November 2012 and that the matter was then adjourned for legal advice. There was a further adjournment on 4 January 2013 before the respondent appeared and entered pleas of guilty on 1 February 2013. Thus, whilst pleas of guilty were not entered at the earliest opportunity they were entered at a reasonably early time and were deserving of a discount on the sentence that might have otherwise been imposed.
The respondent had no previous criminal record and favourable character references were tendered on her behalf. It was submitted that she was unlikely to commit any further offences and that she had 'shown remorse by reaching out to Centrelink and trying to arrange a payment plan'.
Counsel for the respondent submitted that a community based order may be appropriate and said that the respondent was willing to do community work. It was also noted that fines were an available option. Counsel submitted that in the event that a sentence of imprisonment was imposed it should be suspended given the efforts that the respondent had made since being convicted to get assistance for her mental illness and to repay the defrauded money.
Pre-sentence report
The pre‑sentence report stated that the respondent accepted the facts but said that the offences had occurred at a very 'rough' time in her life. She said that she had been in a poor emotional state due to the breakdown of a relationship. She said that unstable mental health, lack of support and financial hardship had caused her to succumb to the pressure.
The report writer's comment was that the respondent appeared to attribute blame to her personal circumstances and had failed to take full responsibility for her actions. She had, however, expressed regret and shame. Nonetheless, her motivation was considered to be to obtain a financial benefit.
The respondent had told the report writer that her employment during the offending period was not secure and involved variable hours. However, employment had continued for four years before the business was closed and the respondent was made redundant. It would seem that the respondent was seeking to justify her failure to report her earnings on the grounds that the employment was uncertain to continue. This justification was obviously very much undermined by the length of time for which the employment actually continued.
The report referred to a difficult childhood in a home where issues of alcoholism and mental health caused the respondent to be neglected and emotionally abused. She left home at 18 and moved to this State shortly afterwards. She had been involved in a number of relationships and at the time of the report had been in a stable defacto relationship since December 2011.
Submissions on discharge without conviction
The magistrate inquired whether defence counsel was making any submissions in relation to a spent conviction. Counsel responded by saying that the respondent was employed with an accounting firm and that dishonesty offences would 'obviously affect her'. The respondent was also about to start a masters degree and it was said that she would 'find it a bit difficult' if she had a dishonesty offence. It was also said that the respondent was a person of good character and that a conviction would adversely affect her. It is clear from this that defence counsel (who was not the same counsel who appeared for the respondent on appeal) was embracing the invitation made by the magistrate to apply for a spent conviction order.
The prosecutor noted that as this was a Commonwealth matter, the provisions of the Sentencing Act 1995 (WA) dealing with spent convictions did not apply. Rather, the relevant Commonwealth equivalent was s 19B of the Crimes Act. The prosecutor said that that section is differently framed and that an order under it should only be made in the most exceptional circumstances and when the discretion is enlivened by the factors provided for under s 19B(1).
The prosecutor opposed the making of a 19B order having regard to the seriousness of the offences committed by the respondent and the need for general deterrence. It was submitted that good character did not of itself justify an order under s 19B and that offences of this type were commonly committed by persons of otherwise good character. It was also noted that the offending had occurred over an extended period of time.
Sentencing
The magistrate noted that there was a need for deterrence. However, he considered that the fact that the respondent had pleaded guilty, had highly favourable character references and had faced 'difficulties' in her life, justified an outcome that did not result in the recording of convictions.
The magistrate then made the following sentencing remarks.
HIS HONOUR: [T]here is no question that what you did was wrong over a long period, and that ordinarily that would have put you outside the bounds of any outcome where you were excused from what you did, and it is a different situation for state legislation than it is for Commonwealth legislation. The offences are not trivial or what you did is not trivial.
Nevertheless you have not sought to excuse what you did. In fact you pleaded guilty, not at the first opportunity, but you have pleaded guilty. Whilst a difficult background is something that you had to endure which others have not had to, it also does not excuse what you did. So that is sort of in the melting pot. There is no other offending in your past. You are working. You have just got a new job, which is to your credit. You are paying taxes as a result of that, and based on the character references that have been submitted on your behalf, you are doing an immense amount of good for other people. In that sense it seems that the offending was out of character really and an aberration really, but it is serious.
However by the slimmest of margins, you are given credit or deserve credit for pleading guilty and for the fact that you have not got any offending and for the fact that it has been difficult for you, and that you are doing so well in respect to the steps you are taking your life. I am going to exercise discretion in your favour in that no charge will be recorded against you in respect of those matters. So no conviction is recorded against you pursuant to section 19 B of the Crimes Act. However I am imposing a good behaviour bond for two years. What that means is that if you offend, because you have not offended now because the charge has been dismissed, but if you offend in that period of time, then these charges can also be resentenced and also you would be liable for whatever happened in relation to that reoffending.
DICKSON, MS: Yes
HIS HONOUR: So essentially taking all of the factors into account that I have mentioned - I do not need to mention again - including the fact which I have not mentioned, I mention this, that you were receiving treatment, and there is a medical certificate to that effect, from 14 March 2007 to 11 March 2010, which embraces quite a substantial part of this period. But as I say, if you commit any offence over the next two years, then not only do these charges come back to the court for resentencing, but also whatever further offence you committed will take its course.
Essentially, despite the fact that the moneys were a reasonably substantial amount, I am giving you the benefit of the doubt, but you will have to prove that over the next two years.
DICKSON, MS: Yes
HIS HONOUR: If you reoffend, then you're back before the court and what will happen then will be largely a matter of your choosing.
DICKSON MS: Yes
HIS HONOUR: You will however be required to repay the money to Centrelink and enter into arrangements with them. I can't make a condition of this, but I would urge you to comply with that arrangement such that you can just get rid of all this stress and build a better life for yourself, which is what you've embarked on. So essentially you've been given the chance to make a fresh start, despite the fact that this was serious - well, not trivial. But all the other factors persuade me that you should be given that opportunity. I can't say don’t let me down, but I hope you don’t.
DICKSON, MS: Yes
HIS HONOUR: Because it was awkward to get over that threshold. So the final outcome is that no conviction is recorded, section 19B of the Crimes Act. However you will be subject to a good behaviour order for two years. A reparation order pursuant to section 21B in the amount of $14,169.61.
PROSECUTOR: If I may, your Honour, just to confirm my understanding under 19B, your Honour is satisfied that the accused's character, antecedents and her mental health are such that it enlivens your discretion under section 19B, and then second to that that you are satisfied that its inexpedient to inflict any punishment other than nominal punishment.
HIS HONOUR: Correct
Mental health
The magistrate made reference to the respondent's past history of depression. This was referred to in the character references. Those references said that the respondent had suffered periods of acute depression, including during the time of the offending. There was also a very brief medical certification from a general practitioner to the effect that the respondent had been treated for depression and been prescribed medication and counselling between 14 March 2007 and 11 March 2010.
Given the nature of the offending conduct and that the respondent had engaged in paid work during the offending period it is difficult to see how the depression significantly mitigates the conduct. No claim was made that the depression was a causative factor. It was advanced simply as part of the respondent's personal history.
Mental illness can be relevant in sentencing in a number of different ways. The issue has been considered in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105 and Gok v The Queen [2010] WASCA 185. Those cases cite with approval R v Tsiaras [1996] 1 VR 398, 400, in which case in which case Charles and Calloway JJA and Vincent AJA said of mental illness:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
In the present case it could not be suggested that depression reduced the respondent's moral culpability. It was relevant in considering the impact of any sentence imposed. It was not apparent that this was an illness that rendered personal or general deterrence irrelevant. Thus, whilst relevant, the respondent's past history of depression was not such as to negate other important sentencing considerations or to justify a sentence well outside the normal discretionary range.
Ground 1 - s 19B of the Crimes Act 1914 (Cth)
Section 19B of the Crimes Act relevantly provides that:
(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:
(i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; and
(iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
Orders under s 19B of the Crimes Act are exceptional in nature. They were so described in Matta v The Australian Competition and Consumer Commission [2000] FCA 729 [3] (French J as he then was). In other cases they have been variously described as:
•'rare' (R v Weller (1988) 37 A Crim R 349; McInnes v Global Imports Pty Ltd (1992) FCA 590; (1993) ASC 56‑199);
•'unusual' (Kelton v Uren (1981) 27 SASR 92; (1981) 52 FLR 232);
•'atypical' (O'Brien v MR Norton‑smith Pty Ltd (1995) TASSC 78; (1995) 83 A Crim R 41); Paterson v Fenwick (1994) ACTSC 25; (1994) 115 FLR 426); or
•'special or singular' (Uznanski v Searle (1981) 26 SASR 388; (1981) 52 FLR 83).
In determining whether it is open to make a s 19B order a court must first consider whether there is information that falls under any of the criteria listed in s 19B(1)(b)(i)(ii) or (iii). If there is, it is then necessary for the court to consider whether, having regard to those matters, it is inexpedient to inflict any punishment or to inflict only nominal punishment or to release the offender on probation without recording a conviction. Thus there is what has been referred to as a two‑stage test.
In Cobiac v Liddy (1969) HCA 26; (1969) 119 CLR 257 Windeyer J in considering a similarly worded statutory provision said:
That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. 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 hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence (275 ‑ 276).
See also, Nelson v Quinn [2001] WASCA 297.
It is not necessary that all three of the factors referred to in s 19B(1)(b)(i), (ii) and (iii) exist in a particular case. Evidence of any one of those factors is sufficient to raise the second stage question. It will then be necessary to consider whether it is inexpedient to inflict any punishment. This second stage necessarily involves a consideration of the seriousness of the offence, the prevalence of the offence and general deterrence: Lanham v Brake (1983) 34 SASR 578.
In the present case the magistrate referred to factors such as the good character and past mental illness of the respondent. It is not disputed that these personal circumstances met the requirements of s 19B(1)(b)(i). That is to say, they were circumstances that were capable of satisfying the first stage. Clearly these were not offences of a trivial nature. As to whether the offences were committed under extenuating circumstances, there was some reference to the appellant having suffered from depression, but this was not advanced by her counsel as an explanation for why she had engaged in repeated and deliberate acts of dishonesty over an extended period. The real issue is whether the second stage was considered.
The appellant submits that the magistrate did not turn his mind to the second stage of the test under s 19B. In the alternative it is submitted that his Honour could not have been satisfied that in all the circumstances that the second stage test was met. That is, the magistrate either failed to consider whether it was inexpedient to impose a conviction or wrongly concluded that it was inexpedient.
The appellant's first proposition cannot be accepted in light of the fact that the prosecutor sought to clarify whether the magistrate had considered both aspects of s 19B. The magistrate's response of 'correct' to that question can only be viewed as an indication that he did consider it inexpedient to impose a conviction. However, I am satisfied that such a conclusion was not reasonably open in all of the circumstances.
In sentencing the respondent the magistrate was required to take into account the factors referred to in s 16A of the Crimes Act. Section 16A(1) requires that a court must impose a sentence that is of severity appropriate in all the circumstances of the offence. The factors that must be taken into account include the nature and circumstances of the offence, whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character, any loss resulting from the offence, the degree to which the offender has shown contrition (including by making reparation for the loss), whether the offender has pleaded guilty, the degree of cooperation with law enforcement agencies, the deterrent effect on the offender, the need to ensure the offender is adequately punished for the offence, the character, antecedents, age means and physical or mental condition of the offender and the prospects of rehabilitation of the offender. The magistrate's sentencing remarks focused on some of these factors, in particular those personal to the respondent, but had little regard for other important factors, in particular the seriousness of the offence and the need for deterrence.
Whilst general deterrence is not specifically referred to in s 16A it has been recognised as an important factor when sentencing federal offenders and is effectively incorporated by the requirement to impose a sentence that is of a severity appropriate in all of the circumstances. The importance of general deterrence has been particularly noted in respect of offences of social security fraud: R v Sinclair (1990) 51 A Crim R 418, 430.
In Laxton v Justice (1985) 38 SASR 376, 381, the following principles were said to be relevant to sentencing offenders for social security frauds:
(1)Offences of this type are now prevalent. The offence is difficult to detect and penalties should reflect a concern for the protection of the revenue.
(2)Frauds of this kind must be viewed seriously because they threaten the basis of the social security system, which is designed to provide financial security for those in the community who are in need. A deterrent penalty is called for.
(3)It is relevant to regard a continuing series of frauds of this type as increasing the moral blameworthiness of the offender's deceits by way of contrast with single or short term offences.
(4)Whilst it could be proper in cases of first offences of this type accompanied by mitigating circumstances to impose a fine, nevertheless a custodial sentence may well be appropriate in the case of serious frauds unaccompanied by substantial mitigating circumstances.
Those principles have been applied in this State in a number of decisions including Nunn v Kinnon (1988) 4 WAR 459; R v Rossi (1988) 4 WAR 463 and Ralph v Nawrojee [2003] WASCA 5.
There are a number of features of the offending in this case which made an order under s 19B inappropriate. They included:
(1)that the respondent had been convicted of four charges;
(2)that each of the charges extended over a period of time, namely eight months for charge one, ten months for charge two, eleven months for charge three, and six weeks for charge four;
(3)the total period of offending extended over three years;
(4)during the periods covered by each of the charges, the respondent made numerous false declarations as to her income both in writing and online;
(5)the total amount defrauded was significant, being in excess of $16,000.
There was evidence that the respondent was a person of previous good character. However, it is not unusual for offenders in respect of social security fraud to be persons of otherwise good character: Moreland v Snowdon [2007] WASC 137. That is not a factor which in itself will usually justify the exceptional or unusual course of discharging an offender under s 19B.
The magistrate appears to have taken the view that the rehabilitation of the respondent was best served by recording no conviction. He was influenced by the fact that the respondent had pleaded guilty and obtained full time employment. He may also have been influenced by suggestions that a conviction could adversely affect her in the future, though those submissions were vague and unsupported by any evidence. The personal factors were relevant but they could not justify a s 19B discharge in the circumstances of this case. Those factors did not overcome the seriousness of the offences and the importance of general deterrence.
The outcome was so clearly inappropriate as to manifest error. Accordingly leave must be granted in respect of ground 1 and the appeal allowed on that ground.
Ground 2 - was the sentence manifestly inadequate
It is strictly unnecessary to consider this ground since the appeal must be allowed on ground 1. However, the reasoning in respect of ground 1 compels a conclusion that the disposition in this case was manifestly inadequate.
It is not enough that an appellate court considers that it would have imposed a different sentence. It must be established that there has been some error in the exercise of sentencing discretion: House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505, (Dixon, Evatt & McTiernan JJ).
A ground of appeal that alleges that a sentence is manifestly inadequate, like one that alleges that a sentence is manifestly excessive, asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319, 126 (Buss JA); Dinsdale v The Queen (2000) HCA 54; (2000) 202 CLR 321, [6] (Gleeson CJ & Hayne J).
A claim of manifest inadequacy depends on establishing implied error in the type or length of the sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached if the sentencing discretion had been properly exercised.
In order to determine that the sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232, [12] ‑ [13] (McLure P).
The maximum penalty for each of these offences is 12 months imprisonment, a fine of up to $6,600 or both: s 135.2 Criminal Code (Cth).
I have noted earlier that there were a number of aggravating features of this offending. There were also a number of personal factors that needed to be taken into account. However, cases of social security fraud require that significant weight be given to general deterrence: Ralph v Nawrowjee; Harding v Moreland [2006] WASC 8.
Where the offending conduct has occurred over a lengthy period of months or years and has resulted in the dishonest obtaining of a large amount of money a prison sentence to be immediately served will be the usual sentence: Kovacevic v Mills (2000) 76 SASR 404; Nunn v Kinnon. Sentences of imprisonment to be immediately served are almost invariably imposed for offending where the amount defrauded exceeds $30,000. See Esplin v Ruffan [2008] WASC 42, Doherty v The Queen (Unreported, WASCA, Library No 970518, 14 October 1997); Macri v Moreland [2008] WASC 194, Norton v The Queen [2003] WASCA 86; Arkrie v Director of Public Prosecutions (Cth) [2012] WASC 200.
Sentences of imprisonment have also been imposed for frauds involving amounts comparable to, or less than, the amount defrauded by the respondent. Such cases include Lutter v Hubbard [2000] WASCA 248 ($12,218.07, 12 months' imprisonment to be released immediately), Hayward v Hubbard [2000] WASCA 416 ($4,280.92, 12 months' imprisonment to serve 4 months before being released), Nolan v Jarvis [2006] TASSC 64 ($9,316.10, 6 months' imprisonment to serve 2 months before being released), Brown v CDPP [1999] SASC 195 ($4,101, 7 months' imprisonment to be immediately released) and Eva v CDPP [1999] SASC 185 ($12,123.43, 8 months' imprisonment to serve 4 weeks before being released). However, sentences other than imprisonment have also been imposed for frauds in this category.
This demonstrates that offences comparable to those of the respondent in terms of the amount defrauded have attracted sentences of imprisonment in some cases. However, the total amount of money defrauded is not the only consideration. Other factors, including those personal to the offender, must also be taken into account. Having regard to the respondent's circumstances a sentence of imprisonment that was effectively suspended by ordering release forthwith under s 20(1)(b) Crimes Act may well have been open. It is also possible that other options may have been within the discretionary range. However, a s 19B discharge without recording a conviction was clearly not an appropriate outcome.
Taking all factors into account, including those personal to the respondent, the disposition in this case was manifestly inadequate. It was not an outcome that was open to the magistrate in the proper exercise of his sentencing discretion. In those circumstances leave to appeal in respect of ground 2 must also be granted.
Conclusion
On the hearing of the appeal, leave to appeal was granted, the appeal was allowed and the s 19B order imposed by the magistrate was set aside. The appellant initially submitted that the matter should be remitted back to the magistrate's court for sentence. However, it is open to this court to resentence the appellant and I considered that to be the appropriate course.
The Criminal Appeals Act makes it clear that in resentencing an offender after a successful appeal the current circumstances of the offender may be taken into account. For those reasons I gave the respondent an opportunity to make further submissions as to the appropriate disposition. It was also necessary to make arrangements for the appellant to be present for re‑sentencing. Accordingly, the matter was adjourned for sentence on a later date.
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