Hayes v The Queen
[2014] VSCA 309
•2 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0147
| WENDY HAYES |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 December 2014 |
| DATE OF JUDGMENT: | 2 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Hayes (Unreported, County Court of Victoria, Judge Gamble, 16 April 2014) |
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CRIMINAL LAW – Sentence – Appeal – Dishonestly obtaining a financial advantage from a Commonwealth entity – Attempting to dishonestly obtain a financial advantage from a Commonwealth entity – Term of imprisonment of 2 years and 6 months with release on recognisance after serving 15 months – Whether sentence manifestly excessive – Whether principles of totality infringed – Principles of totality not infringed – Sentence not manifestly excessive – Leave granted and appeal allowed for limited purpose of correcting County Court record to reflect sentencing judge's actual intention in relation to a reparation order made at the time of sentencing – Appeal otherwise dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Cass | Victoria Legal Aid |
| For the Respondent | Mr Y K Hardjadibrata | Director of Public Prosecutions (Cth) |
WEINBERG JA
BEACH JA:
Introduction
On 2 April 2014, the applicant pleaded guilty in the County Court to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Criminal Code1995 (Cth) (charges 1 and 3) and one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to ss 11.1(1) and 134.2(1) of the Criminal Code (charge 2).
On 16 April 2014, the judge sentenced the applicant in respect of all three charges to a term of imprisonment of two years and six months. The judge ordered this sentence to commence on the day he sentenced the applicant (16 April 2014). In addition, the judge ordered the applicant to be released after serving a period of 15 months, upon the applicant giving security by recognisance in the sum of $5,000 to comply with a condition that she be of good behaviour for a period of three years. During the course of pronouncing his reasons for sentence,[1] the judge said he was prepared to make a reparation order pursuant to s 21(b) of the Crimes Act 1914 (Cth) in the total sum of $102,977.60 (the ‘reparation sum’). Having indicated a preparedness to make this order (to which the applicant consented), the judge said:
Accordingly, you are to pay that sum by way of reparation to the Department of Human Services.[2]
[1]DPP v Hayes (Unreported, County Court of Victoria, Judge Gamble, 16 April 2014) (‘Reasons’).
[2]Reasons [41]–[43].
The judge also ordered that the sentence of imprisonment he imposed upon the applicant be served concurrently with a sentence the applicant was then undergoing in respect of a breach of parole which had been granted in relation to a sentence the applicant received in the Brisbane District Court on 21 December 2009.
Having sentenced the applicant, the judge, as he was obliged to do by s 16F(2) of the Crimes Act 1914, explained to the applicant the purpose and consequences of the recognisance release order. The judge said:
As a result of the sentence that I have just imposed, you will be required to serve 15 months in custody from today’s date. Then you will be released into the community, but with the balance of the term of the two and a half year term of imprisonment hanging over your head. You have promised to be of good behaviour for the next three years. So, if you commit any further offences in that three year period, you will be in breach of my sentencing order. Do you understand that Ms Hayes?
OFFENDER: Yes.
HIS HONOUR: You do not have to pay the sum of $5,000.00 now, but you may have to if you fail to comply with the conditions of this order, which essentially means if you re-offend during the next three years.
If you did commit any further offence in that period, you would be brought back to this court for re-sentencing and you would be at real risk of being sent to gaol to serve the balance of the two and a half year sentence, that is, a further 15 months. Do you understand that, Ms Hayes?
OFFENDER: Yes.[3]
[3]Reasons [106]–[110].
However, in the record of orders signed by the judge, the recognisance release order was expressed in the following terms:
The court orders the release of the accused under paragraph 20(1)(b) of the Crimes Act 1914 after serving 15 months of the term of imprisonment upon the accused giving security by recognizance of $5,000 to comply with the following conditions:
(a) the accused is to be of good behaviour for three years; and
(b) the accused is to make reparation of $102,977.60 to Centrelink.
The order that the applicant give security by recognisance of $5,000 to make reparation of the reparation sum was not an order pronounced by the judge when he sentenced the applicant. The only condition referred to by the judge in sentencing the applicant was a condition that the applicant be of good behaviour for three years – although, in explaining the recognisance release order to the applicant, the judge referred to ‘the conditions’ of this order.[4] The order as set out in the record of orders conforms to the order and recognisance signed by the judge and the applicant on the day of sentencing.
[4]Reasons [108].
The applicant seeks leave to appeal against the sentence imposed upon her on the following grounds:
1.The learned judge erred in his approach to applying the principle of totality in sentencing the applicant.
2.The sentence imposed on the applicant is manifestly excessive having regard to:
(a)the admissions made by the applicant and the timing of those admissions;
(b) the early plea of guilty;
(c) the delay in charges being brought before the court;
(d) the mental health of the applicant;
(e) the absence of enrichment;
(f) considerations of totality.
An issue that must be addressed in this application concerns the precise content and effect of the judge’s order with respect to the reparation sum. One possibility is that the judge merely made an order that the reparation sum be paid by the applicant to the Department of Human Services; another is that the judge required the applicant to give security (and the applicant in fact agreed to give security) by recognisance of $5,000 to comply with a condition that she make reparation of the reparation sum to Centrelink.[5]
[5]Nothing turns in this application on the fact that the judge identified the Department of Human Services as the entity to which reparation would be made when pronouncing the reparation order during the course of his reasons, whereas the signed order and recognisance refers to Centrelink as the entity to which reparation is to be made. As the evidence made clear, prior to sentencing, Centrelink became part of the Department of Human Services.
The issue about the content, construction and effect of the judge’s order concerning the reparation sum is potentially relevant to the applicant’s grounds of appeal because there exists the possibility of differing outcomes in respect of this application, depending upon whether the applicant’s release is only conditioned upon an undertaking to be of good behaviour; alternatively, whether it is conditioned upon an undertaking to be of good behaviour and an undertaking as to payment of the reparation sum; alternatively, whether it is conditioned upon an undertaking as to good behaviour and the actual payment of the reparation sum at any and what time. If the judge’s orders were to be construed as requiring payment of the reparation sum as a condition of the applicant’s release upon recognisance (in circumstances where the applicant may not have the means to make reparation), then a different view might be taken on the issues of totality and manifest excess than if the judge’s orders had the result of requiring the release of the applicant after 15 months regardless of whether she ultimately complied with the reparation order.
The offending
Charges 1 and 2 concern claims lodged by the applicant under a scheme known as the LPG Vehicle Scheme. The LPG Vehicle Scheme was a scheme launched in August 2006 to assist private use motorists with the purchase of a new LPG vehicle, or the conversion of a new or used petrol or diesel vehicle to LPG. Claim payments (grants) were made by Centrelink (now part of the Department of Human Services). To qualify for payment under the LPG Vehicle Scheme, the claimant was obliged to meet certain defined criteria.
Between 12 December 2006 and 29 August 2007, the applicant completed and posted to Centrelink, 42 false claims for LPG vehicle conversion grants and obtained grants amounting to $84,000 from Centrelink. The applicant made the claims in different names, some in her own name, others in the name of her husband, and others in the name of her mother-in-law. The applicant also used the names of friends and acquaintances, and also lodged claims in fictitious names. The applicant fabricated supporting documents such as vehicle registration certificates, invoices, and receipts. She also endorsed documents with false certifications purportedly made by a Justice of the Peace. Each claim charged in count 1 produced a payment by Centrelink of a $2,000 grant into bank accounts nominated on the claim forms by the applicant. In respect of charges 1 and 2, the applicant used 25 separate bank accounts to facilitate the payments on her false claims.
Between 3 January 2007 and 3 September 2007, the applicant completed and lodged by post with Centrelink another 15 false claims for LPG conversion grants. Three were in her name and 12 were in fictitious names or in the names of relatives. Centrelink stopped payments on 13 claims. In regard to the remaining two of these claims, the bank returned the payments to Centrelink.
Charge 1 relates to the 42 false claims made between December 2006 and August 2007, in respect of which the applicant received $84,000 from Centrelink. Charge 2 relates to the 15 false claims lodged between January 2007 and September 2007, which, if they had been paid, would have resulted in the applicant obtaining a further $30,000 to which she was not entitled.
Charge 3 related to payments known as Baby Bonus payments. Baby Bonus payments are payments made to eligible families for children born or adopted after 1 July 2004. Under the Baby Bonus scheme, subject to other criteria, a mother was also entitled to receive a payment if she gave birth to a stillborn child. In 2009, the applicant made two false Baby Bonus claims. In each case the claim was made in respect of twins alleged to have been stillborn. One claim was made by the applicant under her own name, and the other claim was made under a false name. The applicant was paid $10,486.60 in respect of the false claim made in her own name, and $10,491 in respect of the false claim made under a false name. In 2009, the Baby Bonus scheme was administered by Centrelink.
The total amount dishonestly obtained by the applicant in respect of charges 1 and 3 was $102,997.60.
The judge described the applicant’s offending in the following terms:
The offences that you committed were serious examples of their type.
All were pre-meditated and well planned. Sophisticated means were adopted in order to give the claims an air of authenticity and believability. As your offending progressed, you took cynical advantage of a fairly lax system that was reliant to a significant degree on the applicant’s honesty. The offences are all of a rolled-up type, and in the case of Charges 1 and 2, consisted of numerous separate acts of dishonesty. The offending was persistent and continued after there were clear warning signs. The use of other people to unwittingly assist you in your criminal enterprise adds an extra layer of seriousness to your offending. So too did the steps you took to try and avoid detection. The sum obtained in respect of Charge 1 was very substantial, while that obtained in respect of Charge 3 was significant. The sum attempted to be obtained in respect of Charge 2 was also significant. None of the money paid out has yet been recovered and, in all likelihood, it never will be. This was not victimless offending. You obtained a substantial amount of money from the public purse, to which you were not entitled, and so the community at large is the victim.
There is obviously some degree of overlap between the offending the subject of Charge 1 and that of Charge 2.[6]
[6]Reasons [87]–[89].
The applicant’s background
The applicant was 36 years of age at the time of sentencing. She was 29 years of age at the time she committed the offending in relation to the LPG Vehicle Scheme and 31 years of age at the time she committed the offending relating to the Baby Bonus scheme. As the judge said, the applicant did not come before the court as a person of previous good character. In 2004, the applicant had been found guilty of the offence of theft by a clerk and servant. In 2006, the applicant had been found guilty of the offence of unauthorised dealing with shop goods.
The applicant was born and raised in Queensland. After completing year 12, she undertook a two year course in child care at Bundaberg TAFE. The applicant then worked in that field, before working with disability clients for a period in excess of 10 years. The applicant was last employed in 2007, as a carer for the elderly.
Unlike a substantial number of applicants who come before this Court, the applicant has no substance abuse problems. However, as the judge noted, it would appear that the applicant developed symptoms of depression and anxiety in her late teenage years. Subsequently, and at about the time of the offending for which she fell to be sentenced by the judge, the applicant appears to have developed a gambling problem.
In addition to the offending already described, the applicant has been convicted of a number of other offences. These convictions were described by the judge as follows:
[These] convictions are to be regarded as subsequent convictions, because they were not recorded until after you committed the offences for which I must now sentence you. They are clearly relevant to any assessment of your prospects of rehabilitation and the weight to be given to the sentencing principle of specific deterrence.
There are three such court appearances, all of which related to matters of dishonesty, in one form or another.
The earliest of those matters was particularly serious. On 21 December 2009, you were sentenced in the Brisbane District Court after pleading guilty to a Commonwealth offence of obtain financial advantage by deception, which offence was committed in the period between 7 September 2004 and
16 December 2006, as well as a number of other offences of dishonesty charged under the applicable State legislation. Those state offences were committed in the period between 29 June 2006 and April 2008. In effect, you were sentenced to a total effective sentence of four and a half years’ imprisonment, with a non-parole period of 18 months. You had already served a period of 224 days pre-sentence detention in respect of that sentence.
It is clear from the original sentencing judge’s sentencing reasons, as well as the judgement of Chesterman JA, who delivered the leading judgement in the resultant sentence appeal in the Court of Appeal on 30 April 2010, that your offending was of a very high order. Clearly, the offences alleged in Charges 7 and 8 were particularly serious. By means of an elaborate, sophisticated and determined fraud, you obtained $340,000.00 by submitting two false claims to an insurance company, one in relation to yourself, the other in relation to your husband.
The Commonwealth offence consisted of two separate deceptions. In the first, you obtained just under $16,000.00 to which you were not entitled by claiming a Newstart Allowance during a period in which you had gainful employment. In the second, you obtained just under $23,000.00 by assuming your sister’s identity and continuing to submit her Newstart Allowance forms, without her knowledge, after she had obtained a job. In each instance, you submitted false forms on a fortnightly basis.
The frauds were carried out over a number of years when you were aged between 26 and 31. Your offending was variously described as being “systematic and persistent”, and as involving “a degree of energy, planning, application and determination”. It reaped a very substantial sum of money, most of which will never be recovered. Your appeal against sentence was unsuccessful as all members of the Court of Appeal concluded that the sentence you received in the District Court was a modest one.
In due course, you successfully had your parole transferred from Queensland to Victoria.
After your release on parole, you committed nine further offences of dishonesty in the period between 25 March 2012 and 28 May 2012. You were sentenced for those offences in the Sunshine Magistrates’ Court on 29 May 2013, and received an aggregate sentence of four months’ imprisonment, which was wholly suspended for an operational period of 12 months.
Finally, on 6 March 2014, you were sentenced in the same court for two further dishonesty offences alleged to have been committed by you on 5 May 2012. For those offences you were sentenced to an aggregate term of nine months’ imprisonment, which was ordered to be served cumulatively with any uncompleted term owed by you to the State Parole Board. You were also ordered to pay Lion Finance $2,200 by way of compensation. I have been informed that you have lodged an appeal against this sentence and that the appeal is currently listed to be heard in this court on 23 May this year.[7]
[7]Reasons [45]–[53].
The judge’s reasons
The judge dealt in some detail with the issue of the applicant’s co-operation, remorse, the applicant’s reasons for offending, delay and Verdins[8] considerations. The judge said:
[8]R v Verdins (2007) 16 VR 269.
You made some admissions in respect of your false LPG claims to Centrelink staff, before you were even spoken to by investigators. When interviewed, you made full admissions to that offending.
You entered early pleas to both sets of offending. The Baby Bonus matter was able to be fast-tracked only because of your co-operation. By your conduct, you have facilitated the course of justice and saved the community the cost and time that would have been involved in prosecuting these charges at any trial or trials. I am prepared to accept that your pleas are, to some extent, indicative of your remorse.
The issue of remorse is not straight forward, however. While you pleaded guilty at an early stage, following the making of admissions to the investigators, there are other matters to be borne in mind also. You continued to offend despite knowing that what you were doing was wrong and despite being warned by Centrelink staff that you were being investigated. You attempted to divert them from the scent by suggesting that you had only made LPG claims in your own name. It must be acknowledged that the case against you was relatively strong. In the end, I am prepared to attach some weight to this factor, but not its full weight.
Your counsel, Ms Woodward, drew attention to the context in which your offending occurred, namely as a means of obtaining funds for your gambling addiction, which was itself a means by which you sought to cope with your depression and anxiety. As she put it, you were offending during a period when your issues to do with depression and gambling were largely untreated.
There would appear to be no evidence of enrichment on your part and so it may be accepted that your offending was not based on pure greed. But it must be kept in mind that your offending on this occasion involved a high level of criminality. Given the pre-meditated, well planned, sophisticated and sustained nature of that offending, the weight that can be accorded to this matter is limited.
Those same considerations with respect to the nature and extent of your offending are also relevant to the weight to be given to some of the principles in Verdin’s case. In my view, your moral culpability should only be viewed as being reduced to a modest degree, and there should only be a moderate reduction in the weight to be attached to deterrence and denunciation.
Delay is a factor that must be given some weight in this case. As the history of the investigation amply demonstrates, the investigation and ultimate charging of you took a considerable period of time after you became a suspect. No doubt some of that period is explained by the complexity of the investigation and the various names and bank accounts utilised by you in the course of your offending. By mid June of 2011, however, the investigators were armed with the significant admissions which you made in your record of interview. The fact is that you are now being sentenced for offences that commenced seven and a half years ago and ended five years ago. Since you were alerted to the investigation, you have had the question of your fate hanging over your head for a considerable time. But the delay cannot be given its full measure of weight because you have gone on to commit further offences of dishonesty in the meantime.
Your experience of serving a custodial sentence will be more burdensome than for other prisoners. You suffer from depression and anxiety. Furthermore, those conditions have no doubt been exacerbated by the unfortunate experience which you were subjected to at the hands of a prison officer, who was charged with your care while in custody on a previous sentence. I accept that that is so, notwithstanding that you have already received some counselling in respect of that mater.[9]
[9]Reasons [67]–[74].
Analysis
The judge imposed a term of imprisonment of two years and six months commencing from the day the sentence was imposed. However, pursuant to the judge’s orders, the applicant is to be released after serving only 15 months of this sentence. The applicant will not have to serve the remaining 15 months of her sentence provided that she does not breach her recognisance.
The term of imprisonment imposed by the judge was ordered to be served concurrently with the sentence the applicant was then currently serving. One of the sentences the applicant was serving at the time she was sentenced by the judge (and which was ordered to be served concurrently with the sentence imposed by the judge) was the breach of parole sentence transferred from Queensland. That sentence is due to expire on 29 June 2016.[10] The whole of the 15 month period which the judge ordered the applicant to serve will have expired some 11½ months before the expiration of the breach of parole sentence.
[10]Reasons [78].
If the applicant serves the whole of the breach of parole sentence and if the applicant does not comply with her recognisance then, at most, the applicant might have to serve a period of imprisonment of 15 months over and above the sentence she is currently serving in respect of the breach of parole. Having regard to the seriousness of the offending for which the applicant was sentenced by the judge, such a sentence cannot be regarded as manifestly excessive even if one took the most generous view of the matters particularised in the applicant’s proposed ground 2 (admissions, early plea of guilty, delay, mental health, absence of enrichment and considerations of totality).
On the other hand, if the Parole Board were to determine that the applicant should not serve all of the remainder of the breach of parole sentence, there exists the possibility that some part of the 15 month period of imprisonment ordered by the judge will be served by the applicant after she might otherwise be released in respect of the breach of parole sentence.
On either scenario, whether the applicant only serves 15 months’ imprisonment (or is required to serve any part of the balance of the sentence in addition to this period) is entirely within the control of the applicant. If she does not breach her recognisance, she will only serve 15 months’ imprisonment. We do not read the judge’s orders as requiring, as a condition of the applicant’s release upon recognisance, the payment by the applicant of the reparation sum. Construing the judge’s orders as requiring payment of the reparation sum as a condition of release would seem to us to run counter to the prohibition in s 20(2A) of the Crimes Act 1914, which prevents the imprisonment of an offender for failing to pay a reparation amount.[11] Further, we note that in complying with s 16F(2)(b) of that Act, the only condition of the recognisance release order explained by the judge to the applicant was the condition to be of good behaviour.
[11]But see further, ss 20A(5)(c) and 20AB of the Crimes Act 1914.
That said, the parties are agreed that the judge did not intend to make the reparation order a condition of the recognisance release order. The circumstances of the making of the written orders that were signed by the judge were explained to us by the parties. It is not necessary for us to set out those circumstances here. It is sufficient to say that having examined the entire plea and sentence transcript, we accept that insofar as the written record suggests that reparation was a condition of the recognisance release order, the written record does not reflect the judge’s intention. In the circumstances we will give leave to the applicant, at least, to correct the judge’s orders so as to reflect his intention at the time of sentencing.
We turn now to the applicant’s grounds of appeal.
The applicant complains that the imposition by the judge of a term of 15 months’ imprisonment before release meant that the applicant would serve a minimum of 41 months and 13 days in actual custody before being eligible for release.[12] The applicant submits that an effective minimum of three years and six months’ imprisonment for the Queensland offences and the offences for which the judge sentenced the applicant infringes principles of totality and is manifestly excessive. We disagree.
[12]The period of 41 months and 13 days was calculated by adding the 18 months served between 13 May 2009 and 12 November 2010 for the Queensland offences, the nine months and 13 days between 3 July 2013 and the date of sentencing in respect of the breach of parole sentence and the 15 months ordered by the judge.
The Queensland offending was, as the judge noted, particularly serious. Part of that offending involved an ‘elaborate, sophisticated and determined fraud’ whereby the applicant obtained $340,000 by submitting two false claims to an insurance company. Another part of that offending involved two separate deceptions in relation to Newstart Allowance benefits. In the first of these, the applicant obtained just under $16,000 to which she was not entitled by claiming a Newstart Allowance during a period in which she was in gainful employment. In the second, the applicant obtained just under $23,000 by assuming her sister’s identity and continuing to submit Newstart Allowance forms, without her sister’s knowledge, after she had obtained employment.
In sentencing the applicant, the judge correctly noted that he could not speculate about what the Parole Board might do so far as the applicant’s breach of parole sentence is concerned. That said, it seems to us that whatever decision might be made by the Parole Board, the applicant’s proposed grounds are without merit. In our view, there are no issues of totality or manifest excess that are engaged in this application. The judge’s sentence was a very measured sentence having regard to the seriousness of the applicant’s offending. Principles of totality were given appropriate regard, as were all of the matters relied upon by the applicant (and referred to specifically in proposed ground 2). If anything, the judge’s sentence might be regarded as somewhat merciful. Save to correct the County Court record in the way we have described so as to make it clear that reparation is not a condition of the recognisance release order, the appeal must be dismissed
Orders
The application for leave to appeal is granted. The record of the County Court is ordered to be corrected so as to record the reparation order actually pronounced by the judge at the time of sentencing, and so as to delete the recognisance release condition stated to be that ‘the accused is to make reparation of $102,977.60 to Centrelink’. Otherwise, the appeal is dismissed.
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