Hanna Maree Dickinson v The Queen
[2021] VSCA 50
•11 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0001
| HANNA MAREE DICKINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 March 2021 |
| DATE OF JUDGMENT: | 11 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 50 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1867 (Judge Dawes) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant pleaded guilty to obtaining a financial advantage by deception from a Commonwealth entity contrary to sub-section 134.2(1) of the Criminal Code (Cth) – Applicant fraudulently obtained Disability Support Pension payments over a 4 year period by claiming to have been diagnosed with terminal cancer – Not reasonably arguable that judge erred in giving modest weight to consequence of adverse media publicity to applicant – Not reasonably arguable that sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Sonnet | Criminal Lawyers Geelong |
| For the Respondent | Ms K Breckweg with Mr R de Vietri | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
KAYE JA:
The applicant pleaded guilty, in the County Court of Victoria, to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to sub-section 134.2(1) of the Criminal Code (Cth). The charge, to which the applicant pleaded guilty, alleged that the applicant, between 15 January 2014 and 27 October 2018, dishonestly obtained payments of Disability Support Pension from the Commonwealth in amounts totalling $100,230.73, by providing false information to Services Australia that she had been diagnosed with, and was seeking treatment for, cancer.
Following a plea presented on her behalf, the applicant was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1. | Dishonestly obtaining a Financial Advantage by Deception from Commonwealth Entity (contrary to s 134.2(1) of the Criminal Code (Cth) | 10 years | 2 years 6 months’ imprisonment | |
| Total Effective Sentence: | 2 years 6 months’ imprisonment | |||
| Non-Parole Period: | 12 months’ imprisonment and then to be released on recognisance in sum of $1,000 for period of 3 years. | |||
| Section 6AAA Statement: | 3 years 3 months’ imprisonment 15 months’ imprisonment and then to be released on recognisance in sum of $1,000 for period of 3 years. | |||
| Other Orders: | Reparation order — sum of $92,178.72 | |||
The applicant seeks leave to appeal against her sentence on the following two grounds:
Ground 1:The sentencing judge erred in according the applicant only ‘a modest sentencing benefit’ as a consequence of the adverse media publicity.
Ground 2:The sentence imposed by the sentencing judge is manifestly excessive in all the circumstances by virtue of:
(a) breaching the principle of totality; and/or
(b) giving insufficient weight to matters in mitigation.
Circumstances of offending
On 2 December 2013, the applicant telephoned Services Australia (‘the Department’) and advised of her intention to make an application for a Disability Support Pension. Following that call, the Department sent to the applicant documentation for the making of such an application, and a document entitled ‘Authority for Nominee’.
On 15 January 2014, the applicant’s authorised Nominee, namely, her mother, attended the Department’s Customer Service Centre in Mildura and lodged with the Department the applicant’s application for a Disability Support Pension. The Department’s records on that date noted, ‘Please note mother stated that Cust only has 3 mths to live’.
The claim form was signed by the applicant and dated 14 January 2014. In making the claim the applicant stated:
(a) That she was suffering from the following illnesses:
‘Soft tissue sarcoma of shoulder muscle. Small bowel tumour’.
(b) That she was ‘about to start chemotherapy’.
(c) That she was ‘Suffering from cancer’.
(d) That she was living away from her parents in order to ‘receive treatment for the sarcoma cancer’.
(e) ‘Not as yet’, in response to the question whether her disability made it difficult for her to care for herself.
On 22 January 2014, the applicant lodged false documents, that purported to be medical information in support of her claim, comprising:
·A report purportedly prepared by Dr Elizabeth Hu, a general practitioner.
·A report purportedly completed by Professor Alexander Heriot, a surgeon.
·An unsigned letter purportedly from the email address of [email protected].
In the report purportedly prepared by Dr Hu, the applicant’s condition was described as ‘leiomyosarcoma soft tissue sarcoma’. The letter stated that the average life expectancy of a person with that condition was less than 24 months. The letter described the applicant’s past, present and intended treatment. It stated that the applicant’s past treatment consisted of ‘surgery’ and ‘immunoneptesis’, and that the planned future treatment was ‘further chemotherapy and possible overseas treatments’. The letter stated that the applicant had been referred to Professor Alexander Heriot, whose specialty was described as ‘surgical oncology’.
The report purportedly prepared by Professor Heriot stated that the applicant had been diagnosed with a malignant form of a small bowel sarcoma, namely leiomyosarcoma, which the letter described as a very rare form of cancer. The letter stated that a MRI report disclosed that the tumour was 3.1 centimetres in length and that it had not spread to the surrounding lymph nodes. The letter recommended that surgery was the applicant’s best chance of treatment, although different cancer trials were currently under consideration.
The letter from Mr Chao purportedly confirmed that the applicant had a leiomyosarcoma soft tissue sarcoma, which the letter described as a rare form of cancer. The letter stated:
Leiomyosarcomas can be quite unpredictable which is why we operated straight away and through radiation and the injections ECB4 the cancer hasn’t spread to other organs as of yet.
The sarcomas can remain dormant for long periods of tim (sic) and can reoccur after several years of being dormant.
The applicant’s mother also provided a letter to the Department in support of her claim, setting out her understanding of the applicant’s diagnosis, and the treatment that she believed the applicant had received in Phuket and Hong Kong. It should be noted that the applicant’s mother had been deceived by the applicant into believing that her daughter genuinely suffered the form of cancer described above.
On the basis of the material provided to it, the Department granted the applicant’s claim on 24 February 2014, effective from 2 December 2013. Once the claim was granted, the applicant was not required to regularly report in order to continue receiving Disability Support payments from the Department.
On 29 July 2014, the applicant’s entitlement was reviewed when the Department detected that she was in fact working. Subsequently, on 22 August 2014, in the course of a telephone conversation, the applicant advised the Department that she had commenced working on 28 July, but she had not reported it as she was waiting for her payslips to be issued. She further stated that it was possible that she would not continue working, because she was commencing chemotherapy treatment. An overpayment was identified and a pre-payment plan was put in place. The Department elected not to apply a recovery fee, because the applicant’s illness was terminal and she had been working ‘where she can before chemo treatment begins’.
Subsequently, on 11 August 2017, the applicant contacted the Department by telephone seeking an urgent payment of $200. The applicant advised that she had been on a waiting list for surgery, and that she had been informed on the previous day that she would undergo the surgery on the following Monday. The Department approved the request on the basis that the applicant was in financial hardship as a result of an exceptional and unforeseen circumstance.
Unrelated offending
During the period of the offending in the present case, the applicant was convicted in respect of other offending.
On 10 April 2018, the applicant pleaded guilty, before the Melbourne Magistrates’ Court, to seven charges of obtaining property by deception. The applicant had represented to her parents that she was suffering from terminal cancer and that she needed financial support to undergo urgent life-saving treatment. As a consequence, the applicant’s parents obtained assistance from three friends and neighbours, as a result of which the applicant received funds amounting to $41,770. The Magistrates’ Court sentenced the applicant to three months’ imprisonment together with a 12 month community correction order. She was incarcerated from 10 April to 30 April 2018, when she was released on bail pending the hearing of an appeal in the County Court against her sentence. On 24 July 2018, the appeal to the County Court was allowed, and the court imposed a two year community correction order, which contained a number of conditions, including that the applicant perform 200 hours unpaid community work.
Detection of offending
The offending in the present case was detected through a data matching exercise on 1 March 2018, in which the Department discovered that the applicant had received income which she had failed to declare as required. Subsequently, upon discovering that the applicant’s conviction in the Magistrates’ Court on 10 April 2018 related to the falsifying of a medical condition, the Department expanded the scope of its investigation to include inquiries as to the basis of the applicant’s qualification for a Disability Support Pension. The final payment of that pension was made to the applicant on 27 October 2018. The Department suspended the applicant’s pension on 5 November 2018, after it received information that the report, purportedly made by Dr Hu, had not been compiled or completed by her or any other doctor of the medical practice with which she was associated.
Subsequently, witness statements were made by both Dr Hu and Professor Heriot, which were to the effect that the reports, that had been purportedly prepared by them, were false. Dr Hu confirmed that the applicant had attended three consultations with her between October 2012 and June 2014, but she had not made any specialist referral or treatment recommendation for any cancer related condition. Professor Heriot, who is the clinical director of the Peter MacCallum Cancer Centre, and a colorectal surgeon at that Centre, confirmed that an appointment had been made in the name of the applicant in July 2013, but that that appointment was subsequently cancelled without any documentation having been provided to him.
On 12 November 2018, the applicant was invited by the Department to participate in a formal interview. She declined to do so, and a formal interview did not take place.
The applicant was charged on summons on 6 February 2020. At a fourth committal mention on 20 July 2020, she entered a plea of guilty and the matter was listed for a plea.
Further conviction
On 26 February 2020, the applicant pleaded guilty, before the Melbourne Magistrates’ Court, to seven further charges of obtaining property by deception. That offending was committed by the applicant between May 2015 and March 2018. The total amount, that was the subject of the deception, was $10,168.96. At the time, the applicant was employed as a property manager, and she had transferred bond money, paid by tenants, into her own bank account. On the same date, the applicant also pleaded guilty to one charge of attempting to obtain a financial advantage by deception in July 2019. That charge concerned the falsification by the applicant of an application for a car loan in the amount of $30,000. She committed that offence while she was subject to the community correction order that had been imposed on her by the County Court in July 2018.
The applicant was sentenced, in respect of those offences, to a total effective term of imprisonment of three months. She lodged a notice of appeal to the County Court, which was heard on 22 June 2020, together with a charge relating to the contravention of the community correction order. On the hearing of the appeal, the community correction order was cancelled. The applicant was re-sentenced for the offences which were the subject of the appeal and for that breach. She was also sentenced for further offences. In total, she received a total effective sentence of eight months’ imprisonment. At the time of sentence in the present case (24 November 2020), the applicant was undergoing that sentence, her earliest release date being 14 January 2021.
The plea
The applicant was born in Swan Hill on 27 September 1993. She was raised on a farm in the Mallee region. During her childhood, her home life was lonely as her parents were busy working on the farm. The applicant was some years younger than her two elder siblings.
Having attended a number of schools, the applicant completed Year 12 level in 2011. During her years at school, she was teased and bullied about her appearance and body weight. As a result, she developed a sense of insecurity. She took money from her parents to purchase lunch for other children at school in order to try to ingratiate herself with them. During that time, the applicant became fixated on acquiring material possessions in order to keep up her peer group.
After leaving school, the applicant commenced studying to be a chiropractor at the Royal Melbourne Institute of Technology, but she discontinued that course after some six months. By then she had commenced consuming alcohol, and at times she indulged in binge drinking. At about the age of 18 or 19 years, she began frequently using drugs, including cocaine, MDMA, methylamphetamine, LSD and heroin. Her subsequent drug related problems were predominantly connected with her use of cocaine and MDMA.
The applicant gained a Certificate 4 in Property Services. She obtained employment as a property manager for a number of real estate agencies, and subsequently worked in different roles for Disability Services. She lost that employment in February 2020 following media reports associated with her court appearance. She has had two relationships, but at the time of the sentence she was living on her own.
On the plea, the applicant relied on a number of psychological and psychiatric reports that had been obtained by her solicitors. For the purposes of this application, it is necessary to refer to five of them.
Dr Karen Scally, a clinical neuropsychologist and forensic psychologist, interviewed the applicant on 18 June 2018. Dr Scally formed the view that the applicant had a Borderline Personality Disorder and that she also presented with marked Dependent Personality traits. The Borderline Personality Disorder was a serious condition, which was characterised chiefly by emotional dysregulation, and associated social dysfunction, depression and anxiety. Dr Scally considered that the disorder contributed significantly to the applicant’s offending, which she used to maintain an escapist lifestyle and to access her new social group ‘at all costs’. Dr Scally expressed the opinion that, in combination with her abuse of substances, the applicant’s capacity to control her impulses, and to engage in consequential thinking, would have been significantly impaired.
Dr Scally also noted that the applicant presented with severe anxiety and depression symptoms, and fluctuating suicidal ideation. She expressed the view that the applicant would probably not cope well with a custodial sentence, and that her mental condition would deteriorate considerably, due to her pre-existing maladaptive psychological features, which included a very poor ability to manage stress and a tendency to turn to self-harm when she perceived difficulties to be beyond her level of coping. Dr Scally considered that the applicant would benefit from a referral to a spectrum personality disorder service for further assessment and treatment.
The second report relied on by the applicant was prepared by Ms Jennifer Sankaran, a registered psychologist. Ms Sankaran interviewed the applicant on 11 February 2020 in respect of the charges which were to be heard by the Melbourne Magistrates’ Court on 26 February. The applicant did not disclose the current offending to Ms Sankaran.
In her report, Ms Sankaran formed the view that the applicant had a history of borderline and narcissistic personality features. She noted that the applicant had been raised in a family, who had given priority to earning money rather than emotional closeness. As a result of being bullied by her peers at school, the applicant had developed low self-esteem and self-loathing, and she accumulated material possessions in order to cope with her chronic feeling of emptiness. Ms Sankaran noted that the applicant struggled with emotional dysregulation, and that she took impulsive and reckless decisions to deal with her anger and frustration. Ms Sankaran considered that the applicant satisfied the DSM 5 diagnostic criteria for Borderline Personality Disorder and Narcissistic Personality Disorder, and that her condition was moderate to severe. She considered that the applicant might benefit from dialectical behaviour therapy for her Borderline Personality Disorder, grief counselling and mood management.
The third report was provided by Dr Alan Jager, a forensic psychiatrist, who interviewed the applicant in June 2020, for the purposes of the then pending appeal in the County Court.
In his report, Dr Jager summarised the applicant’s history. He noted that the applicant had told him that, when she was 19 years of age and travelling alone in the United States of America, she had been raped by a man who she met in a bar. Dr Jager considered that the applicant fulfilled the diagnostic criteria for polysubstance abuse in partial remission, chronic Post Traumatic Stress Disorder (‘PTSD’) and Borderline Personality Disorder. The PTSD was a consequence of the rape described by the applicant. Dr Jager expressed the view that the applicant required management by a consultant psychiatrist with ‘individual talking therapy’ and the use of high dose anti-depressant medication and other therapies. He considered that if the sentence of imprisonment (which had been imposed on the applicant) was not set aside on appeal, the applicant would not be able to obtain comprehensive treatment to manage her PTSD or to access essential therapy for the Borderline Personality Disorder. Accordingly, a term of imprisonment would be more difficult for her.
The fourth report was provided by Dr Susette Sowden, a clinical and forensic psychologist. Dr Sowden assessed the applicant on 9 October 2020, in order to provide an assessment for the plea that was presented on behalf of the applicant in the present case.
Dr Sowden concluded that the applicant presented with a Borderline Personality Disorder with schizotypal personality disorder features, a Post Traumatic Stress Disorder, and a polysubstance dependence disorder. Dr Sowden also considered that the applicant presented with narcissistic and antisocial personality features. She considered that the applicant’s Borderline Personality Disorder with schizotypal features, in conjunction with narcissistic and antisocial personality features, had adversely affected her mental functioning at the time of the offending. Dr Sowden explained that the applicant’s fear of abandonment — which is characteristic of a Borderline Personality Disorder — in conjunction with her fantasies that money would enable her to have more friends, were significantly related to the offending.
Dr Sowden was of the view that the applicant was a ‘medium risk’ of reoffending. She also considered that the applicant’s Borderline Personality Disorder with schizotypal features would weigh more heavily on her in prison because of her adverse psychological conditions, and that imprisonment would in all probability have a significant adverse effect on her mental health. Dr Sowden was of the view that previous media coverage had adversely impacted on the applicant’s mental health, and that future news media coverage would in all probability significantly have an adverse effect on her health. She concluded that the applicant has good prospects of rehabilitation provided that she receives appropriate treatment.
The fifth report, dated 26 May 2020, was provided by Ms Amy Kendrick, the clinical psychology registrar of the Melbourne DBT Centre. The applicant was then undergoing a 36 week program of comprehensive Dialectical Behavioural Therapy at the centre. Ms Kendrick reported that during the course of the treatment the applicant had learnt a number of behavioural skills which would address her problems. The applicant however had engaged in suicidal behaviour, including being involved in an impulsive suicide attempt using her motor vehicle. Ms Kendrick further expressed the view that media coverage concerning her case would be likely to significantly increase her risk of suicide. She also considered that imprisonment would be likely to increase her risk of suicide.
On the plea, it was submitted that, by reason of the reports of Dr Scally, Ms Sankaran, Dr Jager and Dr Sowden, the applicant’s moral culpability for the offending was reduced, and that the sentencing purposes of general deterrence, specific deterrence and just punishment should be moderated. In mitigation, counsel relied on the applicant’s plea of guilty and her youth. It was also submitted that, as the applicant was currently serving a total effective sentence of eight months’ imprisonment, the principle of totality was relevant. Counsel further noted that the applicant had been subjected to ‘significant media coverage and public opprobrium’ as a result of her offending which represented extra-curial punishment of her.
Reasons for sentence
In her reasons for sentence,[1] the judge, having outlined the circumstances of the offending, characterised the applicant’s conduct as gravely dishonest. The applicant had made a calculated decision to access a significant financial benefit that she was not entitled to receive, and in doing so she had created and supplied false medical documentation. The judge described the offending as a sophisticated and sustained fraud perpetrated over a number of years, during which the applicant had time to reflect on her offending. As such, the applicant’s conduct was ‘disgraceful’.[2] Her Honour also noted that the applicant’s offending did not end voluntarily, but was only brought to a conclusion by the investigation that was undertaken by the Department.[3] In the meantime, the applicant had fraudulently obtained a substantial amount of money from the public purse, creating a heavy burden for taxpayers in the community. The judge noted that it had been acknowledged on behalf of the applicant that her conduct warranted the imposition of a term of imprisonment.[4]
[1]DPP v Dickinson [2020] VCC 1867 (‘Reasons’).
[2]Ibid [28].
[3]Ibid [29].
[4]Ibid [31].
The judge noted that the applicant had voluntarily commenced repayment of the money, but that $92,178.72 remained currently outstanding.[5] The judge stated that the applicant’s history of dishonesty was extensive, although the instant offending commenced in 2014, when the applicant, who was then 20 years of age, had no previous convictions.[6]
[5]Ibid [32].
[6]Ibid [33].
The judge accepted that the applicant’s plea of guilty was entered at an early stage, that the plea had a significant utilitarian benefit, and that it had facilitated the efficient administration of justice, particularly in view of the then suspension of jury trials as a result of the COVID-19 pandemic.[7]
[7]Ibid [44].
Having summarised the reports of Dr Scally, Ms Sankaran, Dr Jager and Dr Sowden, and other documentation received on behalf of the applicant, the judge noted that there was no dispute that the applicant had a Borderline Personality Disorder and a Narcissistic Personality Disorder.[8] The judge noted that the prosecution had accepted that Dr Sowden’s opinion, concerning the effect of the applicant’s Borderline Personality Disorder with schizotypal features, enlivened the principles outlined in R v Verdins.[9]Accordingly, the judge accepted that, as a result of the applicant’s condition, there should be some ‘limited’ moderation of moral culpability, general and specific deterrence and punishment.[10] The judge accepted that the applicant’s dishonest conduct in part was a product of her mental impairment, so that her moral culpability was reduced.[11] Her Honour also considered that a term of imprisonment would weigh more heavily on the applicant than on a person of normal mental health.[12]
[8]Ibid [68].
[9](2006) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[10]Reasons [71].
[11]Ibid [73].
[12]Ibid [72].
The judge, however, was not satisfied on the balance of probabilities that the applicant did suffer PTSD.[13] On the question of remorse, the judge noted that while the applicant might feel sorry for her present predicament and the resulting substantial media interest in her offending, that did not translate to a full or insightful remorse for her offending. The judge acknowledged, however, that the applicant had taken responsibility for her conduct at an early stage.[14]
[13]Ibid [84].
[14]Ibid [86].
The judge gave consideration to the effect of the significant media coverage of the applicant’s offending. Her Honour noted that the applicant had a history of self-harm, and that her risk of suicide was likely to significantly increase due to the media coverage of her case and her imprisonment.[15] Her Honour then concluded on that issue, in a passage which is the subject of ground 1, as follows:
You have been publicly disgraced. The risk that any offender confronts is of publicity being part of the criminal process. Your misconduct has generated wide publicity. I accept that being the subject of acute public interest has added to the stress associated with these proceedings and to the criminal process overall. While the adverse publicity is the product of your sustained course of dishonest conduct, it is likely to continue to have an impact on your mental health and I provide a modest sentencing benefit for that.[16]
[15]Ibid [89].
[16]Ibid [91].
The judge noted that the applicant had engaged in regular consultation with psychiatrists, psychologists and mental health clinicians. However, her Honour concluded that she was not persuaded that the applicant had positive prospects of rehabilitation.[17]
[17]Ibid [97].
The judge took into account, as a mitigating factor, the measures that had been undertaken by Corrections to deal with the COVID-19 pandemic which added to the applicant’s hardship as a prisoner, particularly as she was undergoing her first sentence of imprisonment at the time.[18] Finally, the judge took into account the principle of totality, in view of the fact that the applicant was then already undergoing sentence.[19]
[18]Ibid [101]–[104].
[19]Ibid [105].
Ground 1 — submissions
In support of ground 1, counsel for the applicant noted that, as a result of her offending, the applicant had been subjected to extensive media coverage, which had had an adverse effect on her mental health. Counsel submitted that, on the plea, the prosecution had accepted that the media coverage, and its effect on the applicant, had constituted an extra-curial punishment of the applicant, and thus was a significant mitigating factor. In those circumstances, counsel for the applicant contended that the judge erred in according only a ‘modest’ sentencing benefit to the applicant, in respect of the effect of the media coverage. Counsel submitted that the extra-curial punishment, in terms of the extensive media coverage, not only acted to deter the applicant from reoffending, but had operated to the detriment of the applicant’s mental health. Thus, it was submitted that the judge erred by failing to accord sufficient weight to the adverse publicity to which the applicant had been subjected, and the effect that it had on her. Counsel further submitted that the application for leave to appeal should, in any event, be referred to a Full Bench of the Court, so that the Court could consider the weight which should be attributed to adverse media coverage as a mitigating factor in a case such as this.
Counsel for the respondent made two points in response to the submissions advanced by the applicant in respect of ground 1. First, counsel noted that the complaint, contained in ground 1, concerns the weight that was to be attributed by the judge to the impact of the negative publicity as a mitigating factor. Counsel submitted that it is well established that such a complaint is not a ground of specific error, but rather it is properly a ground for contending that the sentence was manifestly excessive. Secondly, counsel submitted, the judge did properly take into account the adverse media coverage to which the applicant had been subjected, and it was open to the judge to attribute modest, rather than significant, weight to that factor as a mitigating circumstance.
Ground 1 — analysis and conclusion
For the reasons advanced by the respondent, ground 1 is not reasonably arguable.
It is now well established, by a number of decisions of this Court, that a complaint about the weight attributed to a particular factor in the sentencing discretion is not a ground of specific error, but may only be considered in the context of a ground which alleges manifest excess (or inadequacy).[20] That proposition was confirmed in clear terms in the recent decision of Smith v The Queen,[21] where the Court stated:
[20]DPP v Terrick (2009) 24 VR 457, 459–60 [5]; [2009] VSCA 220 (Maxwell P, Redlich JA and Robson AJA).
[21][2020] VSCA 159.
Specific error grounds should properly be confined to errors of the kind which, if made out, would vitiate the exercise of the sentencing discretion. Complaints of specific error typically involve a contention that the judge:
(a) took into account an irrelevant consideration;
(b) failed to take into account a relevant consideration;
(c) misdirected himself/herself as to the applicable principles; or
(d)made a finding of fact which was not reasonably open on the evidence.
Axiomatically, a complaint that too much, or too little, weight was given to a particular matter is not a ground of specific error. Such a complaint can only be considered under the manifest excess ground, for the reasons given in Director of Public Prosecutions v Terrick. Because sentencing reasons do not assign quantitative significance to individual sentencing considerations, the question of whether (in)appropriate weight was given to a particular factor can only be approached as a matter of inference from the sentence imposed.[22]
[22]Ibid [11]–[12] (Maxwell P, Kyrou and Weinberg JJA) (citations omitted).
Further, it is not apparent why, in any event, it was not open to the judge to attribute ‘modest’, rather than more substantial, weight, as a mitigating factor, to the media publicity to which the applicant had been subjected, and the effect that it had on her mental health. In the exercise of sentencing discretion, the judge was required to take into account the gravity of the offending, and the importance, in cases such as this, of ensuring that the sentencing purposes of general deterrence and denunciation be adequately vindicated. The applicant had, over a period of four years, engaged in conduct which, if discovered, could properly be expected to be the subject of widespread public criticism and condemnation. In those circumstances, it was well open to the judge to form the conclusion that the adverse publicity, to which the applicant had been subjected, and the effect of it on her, should be given ‘modest’ weight as a mitigating circumstance.
Contrary to the submission advanced on behalf of the applicant, I do not consider it to be necessary or appropriate to refer to a Full Bench of this Court the question of the weight to be accorded to the effects of adverse media publicity in a case such as this. Clearly, the question of the relevance of media coverage as a mitigating factor, and the weight to be attached to it, must necessarily depend on the particular facts of each case.
For those reasons, I do not grant leave to appeal on ground 1.
Ground 2 — submissions
In addressing particular (a) of ground 2, counsel for the applicant noted that the principle of totality, and s 16B(a) of the Crimes Act 1914 (Cth), had specific application in the present case, because at the time of sentence, the applicant was already undergoing a term of eight months’ imprisonment that had been imposed by the order of the County Court on 22 June 2020. At the time of sentence in the present case, the applicant’s earliest release date was 14 January 2021. The effect of the sentence imposed in the present case is that, before the applicant could be released on recognisance, she would have been required to spend a period just short of 18 months in custody. In those circumstances, it was submitted, the judge imposed an overall sentence that failed to comply with the principle of totality.
In support of that submission, it was contended that the offences, for which the applicant had previously been sentenced, were similar in nature, and had occurred in the same timeframe, as the offending in the present case. Thus, it was submitted, there was a close connection between the previous offences and the offence in the present case, and the applicant was able to rely on significant mitigating circumstances. In those circumstances, it was submitted that the practical effect of the sentence in the present case, which allowed effectively for only two months’ concurrency, failed to comply with the principle of totality.
In support of particular (b) of ground 2, counsel for the applicant submitted that the overall sentence was manifestly excessive in light of the mitigating circumstances on which the applicant was entitled to rely. The applicant had pleaded guilty at an early opportunity, which had utilitarian value and facilitated the course of justice. She had been required to repay to the Department a sum of $92,178.72, and she had already made part-payment of $8,000. The applicant had already been subjected to significant extra-curial punishment in the form of the extensive media coverage. She was a youthful offender, and had no previous criminal history. The judge accepted that the applicant suffered both a Borderline Personality Disorder and a Narcissistic Personality Disorder, and therefore the principles identified in Verdins applied as mitigating factors. In addition, the applicant had participated in a dialectical behaviour therapy program before she was incarcerated, and, although the judge was sceptical as to the plaintiff’s prospects, she had made good progress while in prison. Finally, the applicant faced hardship as a prisoner due to the COVID-19 pandemic. Accordingly, it was submitted, in light of those mitigating circumstances, the sentence imposed on the applicant was manifestly excessive.
In response, counsel for the respondent referred to the principles that apply to sentencing for social security offences and other offences involving fraud. In such cases, the preeminent sentencing consideration is general deterrence, which is necessary to protect the integrity of the social security system against offences of the kind that were committed in this case, which are prevalent and relatively easy to commit. Accordingly, in such cases, personal mitigating factors, such as age, previous good character and the like, are accorded less weight in the sentencing discretion.
Counsel for the respondent submitted that the offending in the present case was attended by a number of circumstances of some gravity. The applicant, by deception, dishonestly obtained a significant sum from the Commonwealth. Her conduct was gravely dishonest and disgraceful. It was fraudulent from the outset. Her offending was sophisticated and calculated. It was perpetrated by the applicant over a period of four years and nine months, during which she had ample time to reflect on her offending. The applicant continued to offend notwithstanding that her entitlement was reviewed by Services Australia on 29 July 2014, when it was detected that she had been employed. After the applicant had been released from prison on 30 April 2018, she continued to offend while on appeal bail. Although the applicant had no previous convictions, at the time of sentence she had an extensive history of dishonesty for offending, which was committed either before or during the period of the present offending. While the applicant pleaded guilty at an early stage, the judge was not persuaded that she had insightful remorse into her offending, and her Honour noted that she had continued to offend after undergoing treatment and assessment by psychiatrists and psychologists. In those circumstances, the judge was not persuaded that the applicant’s prospects of rehabilitation were positive.
Counsel for the respondent further submitted that there was no merit in ground 2(a). The judge expressly acknowledged that she was required to take into account the totality principle when imposing sentence. Her Honour commenced the custodial component of the applicant’s federal sentence (12 months’ imprisonment) on the day of sentence and indicated that that sentence was to be served concurrently with the sentence which the applicant was then undergoing. Counsel submitted that the degree of concurrency thus provided — some seven weeks — together with the lenient order for release after 12 months’ custody on the federal charges, adequately accommodated the principle of totality.
Ground 2 — analysis and conclusion
In order that leave be granted in respect of ground 2, it must be reasonably arguable that the sentence was wholly outside the range of sentences available to the judge in the circumstances of the case.[23]
[23]Clarkson v The Queen (2011) 32 VR 361, 364 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
In considering whether ground 2 is reasonably arguable, the starting point is that it cannot be gainsaid that the offending by the applicant was correctly characterised by the sentencing judge as being serious,[24] and that her conduct was gravely dishonest.[25] The applicant’s offending was calculated, planned and sophisticated. The preparation by her of the three fraudulent medical reports was plainly the product of careful research and thought. The applicant portrayed her condition as being particularly grave, but she took care to ensure that the reports suggested that the condition might endure for some period of time. From the outset, it seems that the applicant planned to perpetrate the fraud over a substantial period of time, which in fact she did. It is particularly reprehensible that the fraud perpetrated by the applicant involved her cruelly deceiving her own mother into believing that she was gravely ill.
[24]Reasons [96].
[25]Ibid [28].
The offending by the applicant was protracted over a period of four years and nine months. During that period, the applicant had more than ample opportunity to reflect on the gravity of her offending and to resile from it. The offending itself was brazen. Notwithstanding that her entitlement was reviewed by Services Australia on 29 July 2014, the applicant continued to practise the deception, informing Services Australia on that occasion, that although she had been working, it was possible she could not continue as she was then undergoing chemotherapy. The applicant’s fraud in seeking an additional payment of $200 on August 2017, on the basis that she would be eligible for surgery shortly, was extraordinarily brazen.
The applicant’s conduct, in the circumstances, could only be properly regarded as being morally disgraceful. She exploited, fraudulently, a claim based on a medical condition, which can cause, and does cause, considerable suffering and heartbreak to those who genuinely are affected by cancer.
It is well recognised that in cases of social security fraud, a primary sentencing consideration is general deterrence, in order to protect the revenue. In such cases, the offending ordinarily involves a deliberate and sustained fraud which is difficult to detect, and which can be quite common. Accordingly, in the sentencing equation, the courts are required to accord primary weight to the purposes of general deterrence and denunciation, which have priority over personal mitigatory factors such as good character and prospects of rehabilitation.[26]
[26]See, eg, DPP (Cth) v Page [2006] VSCA 224, [37] (Eames JA, Vincent JA agreeing at [1], Redlich JA at [75]); DPP (Cth) v Gregory (2011) 34 VR 1, 15–16 [53]; [2011] VSCA 145 (Warren CJ, Redlich JA and Ross AJA); Warden v The Queen [2019] VSCA 2, [32] (Kyrou JA).
In the present case, the sentencing purpose of specific deterrence was also of importance. The applicant has an extensive history of dishonesty. In the present case, she was not deterred by the review of her entitlement that was initiated by Services Australia in July 2014. Further, after she was released from prison on 30 April 2018, the applicant continued to offend in the present case notwithstanding that she was then on appeal bail. From 24 July 2018 until 27 October 2018, she continued fraudulently to receive payments of the pension while she was subject to a community correction order for other offending. In the present case, the judge found that the applicant had not experienced full or insightful remorse for her offending, and her Honour was not persuaded that the applicant had positive prospects of rehabilitation.
In respect of ground (a), the judge set out, in some detail, the applicant’s history of dishonesty. Her Honour noted that the applicant was then currently undergoing a sentence, imposed on 22 June 2020, the earliest release date for that sentence being 14 January 2021.[27] The judge acknowledged that in those circumstances, the principle of totality needed to be considered, and her Honour stated that she took into account the sentence of the applicant was currently undergoing.[28] The judge noted that she was unable to backdate the sentence that she was to impose, and stated that the sentence would commence on the date of its pronouncement and run concurrently with the current sentence.[29]
[27]Reasons [39].
[28]Ibid [105]–[107].
[29]Ibid [107].
It is thus evident that the judge was fully conscious of the principle of totality. Her Honour made allowance for it, first, by providing for some seven weeks of concurrency between the sentence she imposed and the sentence the applicant was then undergoing, and, secondly, by making an order for release after 12 months’ imprisonment on the federal charges. In that way, the judge somewhat generously made allowance for the principle of totality.
Contrary to the submissions advanced on behalf of the applicant, the offending, for which the applicant was sentenced in June 2020, was not closely related to the offending in the present case. While the offending in each case did involve dishonesty, and some of it occurred during the same time period, nevertheless the offending in each instance was separate, involving different victims, and different conduct by the applicant. In those circumstances, it is not reasonably arguable that the judge failed to take into account and give sufficient weight to the principle of totality.
The applicant did have available a number of mitigating factors, each of which were acknowledged and accepted by the sentencing judge. In particular, her Honour accepted that the applicant’s plea of guilty was early, that it had utilitarian value, and that it evinced a willingness by the applicant to facilitate the course of justice. The judge further acknowledged that the applicant had commenced voluntarily to repay the money which she had fraudulently obtained. The judge accepted that the applicant’s background had played a causative role in the development of her personality disorder. Consequently, the judge accepted that the applicant’s moral culpability for the offending was reduced, that the weight to be attributed to general deterrence and specific deterrence should be moderated, and that prison would be more onerous to the applicant. The judge also accepted that the adverse media publicity, to which the plaintiff had been subjected, had added to the stresses associated with the proceedings and would be likely to have an impact on the applicant’s mental health. Finally, the judge acknowledged that the applicant’s time in custody would be more onerous due to the restrictions necessitated by the COVID-19 pandemic.
As I have mentioned, while those mitigating circumstances were required to be appropriately taken into account in the sentencing process, nevertheless they were subsidiary to the principal sentencing purposes of general deterrence and denunciation in the present case. In the circumstances, and particularly in light of the gravity of the applicant’s offending, I am not persuaded that it is reasonably arguable that the sentence imposed on the applicant was manifestly excessive. Rather, the sentence was, in the circumstances, quite moderate, and was well within the range of sentencing options available to the judge.
Accordingly, ground 2 of the application for leave to appeal must fail.
Summary of conclusions
For the foregoing reasons, I do not consider that either of the two grounds, relied on by the applicant, are reasonably arguable. Accordingly, the application for leave to appeal against sentence will be refused.
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