Issac v R

[2024] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Issac v R [2024] NSWCCA 2

Hearing dates:

30 January 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Before:

Davies J at [1]
Hamill J at [89]
Huggett J at [90]

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – one count of obtaining a financial advantage by deception – where applicant falsely represented she was separated from her husband to claim Parenting Payment Single (PPS) – offending took place over seven years and involved fraudulent payments totalling $170,787.11 – where applicant did not give evidence and psychiatric evidence was tendered without objection – where the Crown accepted applicant’s major depressive disorder at least at certain points in time impaired her decision making – where sentencing judge held applicant’s mental health condition did not reduce her moral culpability to a significant degree – whether sentencing judge’s finding on subjective circumstances amounted to a denial of procedural fairness – sentencing judge not obliged to accept what was contained in the psychiatric report – no independent evidence confirmed history given to psychiatrist and appeared inconsistent with other evidence – no denial of procedural fairness – ground rejected

CRIME – appeals – appeal against sentence – whether judge ought to have found that applicant’s mental condition would make custody more onerous – where no such finding was sought by the applicant at the sentence hearing – ground rejected

CRIME – appeals – appeal against sentence – where fraudulent funds had been fully repaid – where applicant did not give sworn evidence of contrition or remorse – whether sentencing judge failed to take into account repayment of money as evidence of contrition – held sentencing judge not obliged to find contrition simply because fraudulent funds had been repaid – other matters inform determination of contrition – ground rejected – appeal dismissed

Legislation Cited:

Crimes Act 1914 (Cth) s 16A

Criminal Code (Cth) s 134.2

Cases Cited:

Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27

Edmonds v R [2022] NSWCCA 103

Hyunwook v R [2010] NSWCCA 148

R v Phelan (1993) 66 A Crim R 446

R v Issac [2023] NSWDC 207

Richards v R [2023] NSWCCA 264

Zhang v R [2011] NSWCCA 233

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Janina Issac (Applicant)
The King (Respondent)

Representation:

Counsel:
A Karim (Applicant)
R Ranken (Respondent)

Solicitors:
Sydney Criminal Law Specialists (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/8797

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Issac [2023] NSWDC 207

Date of Decision:

16 June 2023

Before:

Colefax SC DCJ

File Number(s):

2022/8797

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Janina Issac, pleaded guilty to one count of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). The applicant was sentenced to 3 years’ imprisonment to be partly suspended after a period of 16 months, on 15 October 2024, provided she enter into a self-recognizance for a period of 20 months.

Between August 2013 and December 2020, the applicant falsely represented to Services Australia that she was separated from her husband and that she was not a member of a couple to claim Parenting Payment Single (PPS). PPS is an income support payment for sole parents. As a result of the deception, the applicant fraudulently obtained payments of PPS totalling $170,787.11.

The applicant did not give evidence at the sentence hearing. Rather, she relied on a report from the psychiatrist that was tendered without objection by the Crown. The Crown accepted that the applicant’s major depressive disorder, at least at certain points in time, impaired her decision making.

After accepting the Crown concession, the sentencing judge found that the applicant’s mental health condition did not reduce her moral culpability to a significant degree, particularly because there were many occasions when the applicant had the opportunity to discontinue her dishonest conduct. His Honour also found that in the absence of sworn and persuasive evidence of contrition and remorse, he was not satisfied that the applicant was genuinely remorseful.

The applicant sought leave to appeal against her sentence on the following grounds:

Ground 1:   The applicant was denied procedural fairness in respect of his Honour’s findings regarding her subjective case;

Ground 1A:   His Honour erred in his consideration of the applicant’s mental health;

Ground 1B:   His Honour erred in failing to consider hardship in custody arising from the applicant’s mental health condition; and

Ground 2: His Honour failed to properly take into account repayment of money owed as evidence of the applicant’s contrition pursuant to s 16A(2)(f).

Ground 1A was interrelated with ground 1 asserting a denial of procedural fairness.

The Court (per Davies J, Hamill J and Huggett J agreeing) held, dismissing the appeal:

As to Grounds 1 and 1A:

1. At no stage did the sentencing judge give any indication that he would not draw an adverse inference against the applicant, except in relation to the issue of where the fraudulent funds went. Accordingly, there was no denial of procedural fairness, particularly where counsel for the applicant accepted that this was a matter for his Honour to be persuaded of: [48]–[58], [63] (Davies J); [89] (Hamill J); [90] (Huggett J).

   Edmonds v R [2022] NSWCCA 103, distinguished.

2. A sentencing judge is not obliged to accept what is contained in an expert report, simply because it is tendered without objection or cross-examination. Considering all of the evidence, and not just the material contained in the report from the psychiatrist, it is unsurprising that the sentencing judge was not satisfied on the balance of probabilities that the applicant’s position was as she had outlined it to the psychiatrist: [59]–[62] (Davies J); [89] (Hamill J); [90] (Huggett J).

3. The weight to be given to matters in the applicant’s favour concerning her mental health and the effect that it had on her offending is a matter entirely for the sentencing judge. It was open to his Honour to accept the concession of the Crown and accept that her moral culpability was reduced, but not to any significant degree: [70]–[72] (Davies J); [89] (Hamill J); [90] (Huggett J).

As to Ground 1B:

1. Sentencing proceedings are adversarial proceedings. Where no submission was made on the applicant’s behalf about the effect of full-time custody, the sentencing judge was entitled to infer that no such finding was sought: [75]–[77] (Davies J); [89] (Hamill J); [90] (Huggett J).

   Richards v R [2023] NSWCCA 264; Edmonds v R [2022] NSWCCA 103, cited.

As to Ground 2:

1. A sentencing judge is not obliged to find contrition simply because fraudulent funds have been repaid, particularly where there is no sworn evidence of contrition or remorse, a strong Crown case and a reparation order requiring payment of the full outstanding amount: [84]–[86] (Davies J); [89] (Hamill J); [90] (Huggett J).

   Zhang v R [2011] NSWCCA 233; R v Phelan (1993) 66 A Crim R 448, cited.

   Hyunwook v R [2010] NSWCCA 148, distinguished.

Judgment

1. DAVIES J: On 28 October 2022, the applicant pleaded guilty in the Local Court to one count of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is 10 years’ imprisonment.

2. On 16 June 2023, the applicant was sentenced by Judge Colefax SC in the District Court to imprisonment for 3 years commencing 16 June 2023 and expiring 15 June 2026. His Honour also ordered that the execution of the sentence be partly suspended after a period of 16 months, on 15 October 2024, on condition that the applicant enter into a self-recognizance, without security, in the sum of $1,000 for a period of 20 months. Relevantly, the conditions of the recognizance were that the applicant be of good behaviour, and that she accept supervision of NSW Corrective Services: R v Issac [2023] NSWDC 207 (“R v Issac”).

3. The applicant now seeks leave to appeal against the sentence upon the following grounds:

Ground 1:   The applicant was denied procedural fairness in respect of his Honour's findings regarding her subjective case;

Ground 1A:   His Honour erred in his consideration of the applicant's mental health;

Ground 1B:   His Honour erred in failing to consider hardship in custody arising from the applicant's mental health condition; and

Ground 2: His Honour failed to properly take into account repayment of money owed as evidence of the applicant's contrition pursuant to s 16A(2)(f).

The offending

4. The applicant was sentenced on the basis of agreed facts which can be briefly stated. Between about 20 August 2013 and 3 December 2020, the applicant falsely represented to Services Australia that she was not a member of a couple when she lodged an application for Parenting Payment Single (PPS) on 20  August 2013. She falsely represented that she was separated from her husband Ramon Audisho and that she was not otherwise a member of a couple. As a result of the deception, the applicant fraudulently obtained payments of PPS totalling $170,787.11.

5. PPS is an income support payment for sole parents. It is payable to persons with dependent children until the date of the youngest child’s 8th birthday. A parent is eligible for PPS only if that parent is not a member of a couple.

6. On 28 July 2007, the applicant and Mr Audisho were married. At no point were they divorced.

7. On 15 February 2010, whilst the applicant was in receipt of Newstart Allowance Payments, the applicant called Services Australia and advised that she had separated from her husband since 8 February 2010.

8. On 14 June 2013, the applicant and Mr Audisho’s first child was born. The child’s birth certificate recorded them as the parents and that they resided at the same address. Following the birth of that child the applicant lodged her initial claim for PPS on 20 August 2013. Thereafter, the applicant received payments of PPS.

9. On 23 March 2017, the applicant’s and Mr Audisho’s second child was born. On 24 April 2017 the applicant lodged a new born child declaration form with Services Australia, indicating that she did not have a partner.

10. On 5 July 2017, the applicant lodged an application for Family Tax Benefit with Services Australia in which she again indicated that she was separated, and had been since 8 February 2010. On other occasions in September 2017, May 2018, August 2018 and January 2019 the applicant informed Services Australia that she was separated and she did not know where Mr Audisho worked or who he was living with.

11. On 11 April 2019, the applicant and Mr Audisho’s third child was born. On 15  July 2019, the applicant again contacted Services Australia regarding a benefit due to her having recently given birth. In doing so she again said that she was separated from Mr Audisho and that he had a new partner.

12. During the period of the offending, there were 45 occasions when the applicant contacted Services Australia in relation to her payments, but at no time did she advise them that she was a member of a couple.

13. The relationship between the applicant and Mr Audisho was first detected by way of data-match with another Commonwealth agency on 10 August 2020. A search warrant was executed on 3 December 2020 at the jointly owned property at Mount Pritchard where the applicant and Mr Audisho lived.

14. It was ascertained that the financial affairs of the applicant and Mr Audisho were intertwined and that their financial position was very strong due to Mr Audisho’s financial position.

15. The applicant was arrested on about 5 December 2021.

Subjective matters

16. The applicant did not give evidence at the sentence hearing. Rather, she relied on a report from the psychiatrist, Dr Sathish Dayalan. That report along with various medical records, was tendered without objection by the Crown. Dr Dayalan was not required for cross-examination.

17. The medical records disclose that on 14 July 2009 the applicant underwent a left mastectomy and sentinel node biopsy. Pathology demonstrated a 1.75mm grade 2 invasive cancer. The applicant subsequently underwent chemotherapy, and she was treated with Tamoxifen (an anti-oestrogen drug used for the treatment of breast cancer) for two years. Whilst undergoing the chemotherapy, the applicant was diagnosed with an overactive thyroid gland.

18. The applicant told Dr Dayalan that she suffered from depression from the time of the cancer diagnosis in 2009. Whilst there was no contemporaneous medical evidence concerning that depression, it has subsequently been recorded in medical records in 2016 and 2019.

19. There is some further medical evidence in 2019, shortly after the birth of her third child, of some weeks of depression. There was also medical and psychological evidence from 10 December 2020 evidencing complaints of depression from that time onwards.

20. The applicant told Dr Dayalan that her husband had been unfaithful to her, that he had spent money on gambling and that there had been domestic violence. The applicant told Dr Dayalan that because of those matters she did not wish to be reliant on her husband, and she wished to be financially independent. It was in those circumstances that she made the false claims.

21. On the basis of the medical records and the account given to him by the applicant, Dr Dayalan concluded that the applicant suffered from major depressive disorder with anxious distress that had been recurrent in nature. Dr Dayalan noted that thyroid conditions were endocrine disorders most commonly associated with anxiety and depression. He noted the applicant’s sense of shame associated with being diagnosed with cancer at an early age and losing her breast. He noted that she felt unsupported by her husband who was unfaithful and was losing money on gambling.

22. Dr Dayalan said that there were some challenges to providing an opinion on the nexus between her psychiatric condition and the offending behaviour given the historical nature of the offending behaviour and the provision of misleading information at various time intervals. He considered that there was a high probability that the applicant suffered from post-partum depression around the time when she first lodged the claim for the PPS.

23. Dr Dayalan said that the applicant’s depressive disorder had significantly impacted on her occupational functioning, and it appeared that she had resorted to offending behaviour to contain anxiety about her ability to manage if the marriage failed. He said that it was very likely that her depressive disorder impaired her ability to consider carefully the consequences of her decision.

24. Dr Dayalan considered that the impact of incarceration would be more onerous upon her in view of her major depressive disorder with anxious distress.

Findings of the sentencing judge

25. His Honour appeared to accept (R v Issac at [24]) that the applicant had experienced depression in 2009 until 2011 as she had asserted. His Honour then observed that there was no independent medical record of the applicant being diagnosed, or treated for, depression after 2011 until after the execution of the search warrant in December 2020.

26. His Honour noted at [25] what was contained in a perinatal psychosocial referral of 10 December 2012 in which the applicant reported her “Husband not very supportive. Has great support from family”. His Honour then said at [26] that “after this point in the chronology some caution needs to be exercised in relation to the history you gave to Dr Dayalan”. That history included that her husband had been unfaithful, had spent money on gambling, and that the applicant and her husband struggled to manage their finances, with the result that the applicant had not wanted to be reliant upon her husband and had, therefore, made claims to receive parental allowance from Centrelink.

27. His Honour observed at [29] that there was no independent document in evidence confirming the history given to Dr Dayalan and that the history appeared inconsistent with the financial transactions set out in the agreed facts which included the following:

(a)   In November 2015, the applicant and her husband took out a joint home loan of $524,000 for renovations to the matrimonial home jointly owned. That loan was fully repaid by March 2017;

(b)   On 23 February 2017, the applicant alone took out a residential investment loan in the amount of $850,000. That loan was fully repaid by August 2020;

(c)   On 20 August 2020, the applicant and her husband jointly took out a further residential loan in the sum of $500,000;

(d)   Between July 2017 and June 2020, the applicant was the sole signatory for a transaction account for their first child in which almost $590,000 was deposited;

(e)   Between September 2017 and April 2020, the applicant was the sole signatory for a transaction account for their second child into which a total of almost $390,000 was deposited;

(f)   Between September 2019 and September 2020, the applicant was the sole signatory for a transaction account for their third child into which almost $200,000 was deposited;

(g)   In relation to the three transaction accounts, significant sums were withdrawn by the applicant;

(h)   The applicant and her husband had a joint personal account into which almost $245,000 was deposited between December 2015 and August 2017;

1. There was a joint account operating under the name RMJ Group Pty Ltd into which an amount in excess of $7 million was deposited between July 2016 and December 2020; and

(j)   There was a joint account which also involved an unnamed third party in the name of Aqua Management Group Pty Ltd into which a little under $1 million was deposited between October 2015 and September 2016.

28. His Honour noted at [37] that he was unable to make any finding as to how the applicant used the fraudulently obtained funds.

29. His Honour noted at [39] what was contained in the statement of agreed facts about the relationship between the applicant and her husband as disclosed in SMS and chat messages, and in the significant amounts of money that were spent by the applicant and her husband on luxury items.

30. The sentencing judge noted at [40] a submission by the Crown on the question of the applicant’s mental health as follows:

The Crown accepts the offender was suffering from a major depressive disorder and that at least at certain points of time this impaired her ability to carefully consider the consequences of her decision making.

31. Of this submission, his Honour said at [41]:

This submission, in light of the evidence to which I have referred, was a generous one. Except for that submission, it would have been difficult for me to have found, on the balance of probabilities, that the (self-reported only) marital difficulties of which you complained to Dr Dayalan had been proved. It would also have been difficult for me to have found that you had diagnosed and significant depression from 2011 until the execution of the search warrant. And it would have been difficult for me to have found that, in that period, there was any meaningful impairment of your decision making capacity. Because of that submission, I make no finding on those issues beyond the terms of the submission.

32. His Honour then held at [42] that the applicant’s condition did not reduce her moral culpability to any significant degree, particularly because there were many occasions when she had the opportunity to discontinue her dishonest conduct.

33. His Honour found at [44] and [45] that, in the absence of sworn and persuasive evidence of contrition and remorse, he was not satisfied that the applicant was genuinely remorseful. In relation to the fact that she repaid the fraudulently obtained funds, his Honour observed at [44] that, “The repayments are also capable of being regarded as steps taken by you to reduce the penalty you will receive.”

32. His Honour found that the applicant had good family support and that the applicant had taken steps to engage with mental health professionals after the offending came to light. His Honour regarded her prospects for rehabilitation as guarded. He considered that specific deterrence was fully engaged.

Grounds of appeal

Ground 1:   The applicant was denied procedural fairness in respect of his Honour's findings regarding her subjective case

Submissions

35. The applicant drew attention to what this Court had said in Edmonds v R [2022] NSWCCA 103 in relation to procedural fairness at a sentence hearing. The applicant submitted that the decision was relevant for a consideration of what occurred at the sentence proceedings in the present matter.

36. The applicant submitted that Dr Dayalan’s report was admitted into evidence without objection and Dr Dayalan was not required for cross-examination. Nevertheless, the applicant submitted, the Crown made submissions to the sentencing judge which effectively challenged some of the material in Dr Dayalan’s report concerning the nexus between the applicant’s depression and the offending. The applicant submitted that the Crown did so by reference to material contained in the statement of agreed facts that supported the assertion that the applicant was in a stable and functioning marriage, and a loving and committed relationship.

37. The applicant submitted that the Crown had submitted to the sentencing judge that the applicant only started seeing a mental health clinician in the month prior to the sentence proceedings, and that that overlooked the other evidence that the applicant had undertaken psychological treatment from December 2020 with a psychologist, Ms Zaarour.

38. The applicant submitted that in those ways, the sentencing judge may have been inadvertently misled by the Crown, and that that led to the findings made by his Honour that were, in effect, inconsistent with what the applicant reported to Dr Dayalan, as recorded in his report.

39. The applicant further submitted that there was procedural unfairness by the fact that the sentencing judge informed senior counsel for the applicant, in relation to the financial evidence concerning the applicant’s family bank accounts and loans, that he was not going to make any adverse findings to the applicant in the light of that evidence. The applicant submitted that senior counsel therefore did not seek to address the sentencing judge further in relation to that portion of the agreed facts. The applicant submitted that there was no indication by the sentencing judge that he was considering making adverse findings concerning the history provided to Dr Dayalan by the applicant and in relation to the applicant’s mental health condition.

40. The applicant submitted that the adverse findings about the history given to Dr Dayalan,

“may have resulted in an error that infected his Honour’s further findings as to the mental condition of the applicant, her moral culpability, whether the need for denunciation and general deterrence should be reduced in her case, steps she had taken towards rehabilitation, her prospects of rehabilitation, and may also have contributed to the absence of any findings by his Honour as to hardship in custody likely to be experienced by the applicant”.

Determination

41. In Edmonds, the applicant did not give evidence, but relied upon a psychological report which set out a history given by the applicant to the psychologist about her background, giving rise to the need to consider “Bugmy matters” (Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27).

42. During the course of submissions, there was a debate between the sentencing judge and counsel for the applicant about the effect of the psychologist’s report going into evidence without objection in circumstances where the applicant did not give sworn evidence to corroborate what she had told the psychologist. Counsel for the applicant commenced to make submissions about Bugmy matters, but the sentencing judge said:

You don’t need to address me on that Mr Townsend… Where the Crown doesn’t take an objection and doesn’t require the person to swear to the truth, it is difficult for the Crown, in my view, to make the submission that this Crown representative has made (i.e., that Bugmy factors were not established)….I think I’m not in a position to reject the version of events given by the offender.

43. In his sentence remarks, the sentencing judge in Edmonds, said that,

in the absence of any independent and objective supporting evidence, [his Honour was] not persuaded on the balance of probabilities that [the applicant] had a dysfunctional upbringing, that [the applicant] had later in life traumatic experiences, that [the applicant has] an adjustment disorder, or that [the applicant is] remorseful for [her] offending.

In so finding, his Honour noted that the applicant did not give oral evidence to affirm the truth of the history contained in the report, or to express her remorse.

44. Not surprisingly, the Crown in that case on appeal conceded that there had been a denial of procedural fairness. In considering whether the concession was properly made Dhanji J (with whom Macfarlan JA and Rothman J agreed) said at [28]:

Returning to the present matter, the sentencing judge plainly indicated to the applicant’s counsel that, despite the degree of dissatisfaction with the process, counsel did not need to address on what were described as “Bugmy matters”, the factual foundation for which was contained in the report. This, together with his Honour’s statement that “I think I’m not in a position to reject the version of events given by the offender” effectively foreclosed the applicant’s counsel from making submissions as to why the applicant’s account to the psychologist should be accepted or, alternatively, reconsidering his decision not to call the applicant. This amounted to a denial of procedural fairness. Accordingly, ground 1 is made out.

45. What occurred in the present matter differed significantly from what took place in Edmonds.

46. The exchanges between senior counsel for the applicant and the sentencing judge which are relied upon in support of this ground are as follows:

JAMES: …She was at that time suffering from a major depressive disorder. She had, or possibly a postpartum following the birth of the child. She was suffering from, plainly, aberrant thinking following the breast cancer operation and the consequences for her. And she was certainly suffering from some degree or other, to some extent, from some difficulties, at times at least, in her relations with her husband. Otherwise the evidence seems to establish that the husband was providing what he considered was a stable and loving relationship. But that was not what she considered it to be.

Now when it comes to looking to the issue of her culpability for what she was doing, the Crown seek to put forward a proposition that she was committing this offence out of greed. It is plainly - such a hypothesis ignores her mental stability during the period.

It is submitted now to your Honour that in fact although there might have been evidence from medical practitioners that at times during the relationship she might have had the mental conditions, your Honour would not conclude that they were not continuous in nature - would conclude they were only intermittent. Well, given that there might be fluctuations in mood, as there is with almost every mental health problem, it is not open on the evidence we would submit to your Honour, to conclude that there were times when she wasn’t suffering from it. Plainly she was suffering at times at which it was detected. There is no reason to believe she suddenly became good when the doctors weren’t around, and was only ill when the doctors were there.

She has presented a consistency of approach, even though her attitude to her offending seems to have been bizarre. Now, I can’t put it that she was the subject of an abusive relationship for seven years by her husband. I can accept that she had these mental conditions and so forth and put them forward to your Honour. But the suggestion that she’s actuated from first to last by greed, simply ignores the unchallenged medical and mental health evidence to the extent--

HIS HONOUR: Well, I don’t know where the money went--

JAMES: Well, your Honour--

HIS HONOUR: And the motive, the determination of motive in part might require me to consider where the money went. But I do not know where it was and the one person that could have told me where the money went has remained silent in the dock.

JAMES: And is not subject to an onus insofar as that contention of greed is concerned and of course your Honour is assuming that rationally she would be able to say where the money went.

HIS HONOUR: Well no one said to me, not even Dr Dayalan has said that she is not capable of giving that evidence.

JAMES: I’m not suggesting she’s not, but your Honour should not, consistent with I reckon that--

HIS HONOUR: I’m quite conscious of the law that in terms of matters of aggravation, the onus is on the Crown to prove beyond reasonable doubt and matters of mitigation, the onus is on the offender to prove on the balance of probabilities.

JAMES: I’m not talking about that, your Honour. I’m talking about drawn [scil. drawing] an adverse inference against my client based on her maintaining a right to silence.

HIS HONOUR: No, then I express myself poorly perhaps not for the first time but I’m not drawing the inference adverse to her. I’m simply saying that I’m having some trouble at the moment with the proposition that the monies were deployed for any particular purpose in any particular direction when I don’t know where the money went.

JAMES: I can’t quarrel with that. I can only say this, that she’s repaid close to the totality of the sum of money represented in the charge. The allegations are a matter of the Commonwealth. She intends to repay the whole of the debt due to the Commonwealth whether by way of reparation or already existing payments including payment of the outstanding additional amount to the amount charged. That’s a matter for your Honour to take into account under s 16A(2)(1), leaving aside that if law was there at common law, it’s but buying your way out of jail because it’s not something like the Crown paying $450 million to a regulator, so it’s not a subject of criminal prosecutions.

(emphasis added)

47. The applicant submitted that the findings made by the sentencing judge that amounted to a denial of procedural fairness were what is set out at [31]-[34] above.

48. It is clear from the exchanges between senior counsel for the applicant and the sentencing judge that the present matter bears no relationship to what occurred in Edmonds. In the present matter, the principal debate in the passage identified by the applicant (and set out at [45] above) was about the Crown submission that the offending had taken place by reason of the applicant’s greed. That issue fed into the question of where the fraudulent funds went, and what they were used for.

49. His Honour made it clear that he did not know, on the evidence, where the money went. His Honour made it clear that he was simply having trouble “with the proposition that the monies were deployed for any particular purpose in any particular direction when I don’t know where the money went”. Nowhere did his Honour give any indication, or make any statement, that there was no need for senior counsel for the applicant to address him on any other aspect of the matter.

50. At the sentence hearing, the Crown first addressed the sentencing judge, and in the course of doing so said this:

Dealing firstly with the offender’s mental health, the Crown accepts that the offender was suffering from a major depressive disorder and that at least at certain points in time, this impaired her ability to carefully consider the consequences of her decision-making. However, it’s not accepted that her condition should reduce her moral culpability to a significant degree or for the Court to find that general deterrence has no role to play. … Relevantly, the medical records reveal periods of depression and anxiety at three particular points in time.

Firstly, in the aftermath of the offender’s left mastectomy in 2009 leading up to likely port-partum (sic) depression after the birth of her first child in June 2013. The next report of any signs of depression is six years later in 2019 at the time of the birth of her third child and then the final period is after the offending period with all the medical evidence from pp 28 to 71 of the defence bundle concerning the offender’s mental state following the execution of the search warrant on 3 December 2020.

Outside of these charge periods, the Court is left with the offender’s statement to the psychiatrist that she was in a low mood for most of the offending period which ...(not transcribable)... should be treated with great caution as untested evidence and against this, there exists medical evidence from November 2016 which your Honour will find at the defence bundle, p 18.

…

Where in a perinatal, psychosocial referral, the offender reported being fine and happy and felt she had good support from her partner, mother and family.

51. The Crown also said:

The Crown doesn’t accept the offender’s representations in its entirety to the extent that it’s corroborated by things she’s told medical professionals prior to being charged. …The Crown accepts that as evidence that she was in a difficult relationship in the sense that her husband was not supportive but without sworn evidence as to how he used his money or treated the offender physically or verbally, the Crown doesn’t accept that she was in an abusive relationship to the extent that was reported to the psychiatrist.

52. Thereafter, senior counsel for the applicant was invited to reply to the Crown’s submissions.

53. A reading of the whole of the submissions in reply made on behalf of the applicant before the sentencing judge discloses that there was no engagement with what the Crown had submitted, namely, that the Crown did not accept all that the applicant had told to Dr Dayalan, when there was either an absence of supporting evidence or evidence to the contrary.

54. During those submissions, senior counsel for the applicant had agreed with his Honour that the evidence went “nowhere near” to support the proposition that the husband’s conduct towards the applicant was “in an abusive way”. In the context, “abusive” was a general term for the way the husband was treating the applicant. The exchange was as follows:

JAMES: …We have not asserted that the husband’s conduct can be established by us beyond reasonable doubt, to be in an abusive way. We can at best submit---

HIS HONOUR: No, but I interrupted you Mr James a - because you were advancing a submission that your client conducted herself in the way that she did, in part, as a result of her concerns for the financial security of the children. And I am simply pointing out that the evidence goes nowhere near to support that proposition.

JAMES: I quite agree your Honour. So--

HIS HONOUR: Then why did you make the submission?

JAMES: But what it does go to is that she had a genuine, albeit, misconceived or irrational, concern for the security of the children. And that was a condition that long existed, coupled with her major depressive disease. And whether she - whether the husband was treating her well or not; whether he was imposing some financial insecurity on her or not, she genuinely perceived that he was. Now it might have been wrong and irrational, but it was directly affecting her.

55. Three other matters are significant. First, the written submissions on behalf of the applicant at the sentence proceedings say this:

13.   It is accepted that her relationship with her husband from her perspective appeared to be fraught and existed within a cultural context within which her breast condition had, on her at least, a serious impact. Although from his and from an objective perspective, it was a stable, supportive and loving marriage.

14.   The evidence supports that the couple were within an existing relationship in which the husband was showing affection to her. Even to the extent of his purchasing for her a Mercedes Benz motor vehicle and purchasing a family home held in joint names, though subject to a mortgage which was repaid in 2017. The property was further mortgaged and remains encumbered. The whole of the contributions to that property appear to have been made by the husband.

56. Those submissions also drew attention to other borrowings made by the husband, and to the fact that the applicant’s financial circumstances showed that she had financial assistance from her husband contrary to what she told Services Australia.

57. That was reinforced by senior counsel in oral submissions who said:

Otherwise the evidence seems to establish that the husband was providing what he considered was a stable and loving relationship.

58. The only thing said by senior counsel in response to the Crown’s submissions in that regard was this:

It’s a situation in which, for an affirmative proposition that the defence is putting forward which might mitigate, then, balance of probabilities. But we can do that relying on both unsworn evidence that has been admitted by consent and unchallenged. Inference as well from that which has otherwise happened. But it is a matter for your Honour to be persuaded of it at the end of the day.

(emphasis added)

59. Secondly, part of the account given by the applicant to Dr Dayalan was not supported by what was contained in the statement of agreed facts, not only as to the intertwined financial situation of the applicant and her husband, and the support provided by him, but also from what was said in the agreed facts to be:

A large volume of SMS messages and chat messages sent by the offender to various recipients throughout the offence period which demonstrate that the couple were in a stable and functional marriage which both individuals accepted and acknowledged to be such, and that they held themselves out to society to be a couple.

60. Thirdly, the applicant had tendered on her behalf medical records which, to some extent, contradicted what she told Dr Dayalan, in that those records noted that she told various medical and health professionals she had good support from her partner. Nor did those reports bear out her account that since 2009 she had been low in mood for most days, that she had sleep and appetite problems, panic attacks, that she lacked energy, and that she had suicidal thoughts. Indeed, the reports from her GP in 2021 do not record any anxiety at all, nor any depression until 2020. Accepting that she suffered from depression from 2009 to 2011, the contemporaneous medical reports refer to isolated incidents of depression and/or anxiety, apparently related to pregnancy or child birth.

61. These matters point to the fallacy in the submissions now made on behalf of the applicant, namely, that because Dr Dayalan’s report was tendered without objection and he was not cross-examined, the sentencing judge was obliged to accept what was contained in that report. Ultimately, the onus was on the applicant to persuade the sentencing judge on the balance of probabilities that the position was as she had outlined it to Dr Dayalan. In reaching a decision about whether such an onus had been discharged, the sentencing judge had to consider all of the evidence, and not just the material contained in Dr Dayalan’s report. That was no doubt why senior counsel for the applicant, in referring to the applicant’s unsworn and unchallenged evidence, said:

It is a matter for your Honour to be persuaded of it at the end of the day.

62. The sentencing judge was not obliged to accept what was contained in Dr Dayalan’s report. He had to be satisfied on the balance of probabilities that those matters were made out. It was scarcely surprising that his Honour found that they were not made out, except in accordance with the Crown’s concession, when there was conflicting evidence in the statement of agreed facts and in the contemporaneous medical evidence tendered on behalf of the applicant.

62. At no stage did the sentencing judge give an indication that he would not draw an adverse inference against the applicant, except in relation to the issue of where the funds went, and as to any motive for the offending.

63. There was no denial of procedural fairness. This ground should be rejected.

Ground 1A:   His Honour erred in his consideration of the applicant's mental health

Submissions

65. The applicant submitted that this ground was interrelated with ground 1 asserting a denial of procedural fairness.

66. The applicant submitted that his Honour failed adequately to refer to and accept the evidence concerning the applicant’s mental state prior to, during, and after the period of the offending. The applicant pointed to the medical records, but placed particular emphasis on those which concerned her psychological treatment from 2020 after the detection of the fraud.

67. The applicant submitted that his Honour erred in finding that she had taken steps to engage with mental health professionals only after the offending came to light, and only in relatively recent times. The applicant submitted that, in making that finding, his Honour may have been inadvertently misled by a submission to that effect made by the Crown. The applicant pointed to the words “only in relatively recent times” to submit that the finding failed to take account of the fact that the applicant had been having psychological treatment from December 2020.

68. The applicant submitted that the approach taken by the sentencing judge was too restrictive as to the whole question of her mental illness, and how a consideration of her current mental health informed the subjective considerations generally in her sentencing.

69. In oral submissions, the applicant said that the objective evidence demonstrated a causal connection between the mental health and the offending which entitled the sentencing judge to place significant weight on that connection, and therefore lead to a reduction in moral culpability. The applicant submitted further that his Honour did not give effective consideration to her mental health and the causal connection.

Determination

70. The particular difficulty for the applicant in relation to this ground is that it was, in substance, a ground that the sentencing judge did not accord sufficient weight to matters in the applicant’s favour concerning her mental health and the effect that it had on her offending. The weight to be given to those matters was entirely a matter for the sentencing judge. Error of law is not demonstrated by showing that greater weight should have been accorded to a matter by a sentencing judge.

71. It is clear from the judgment of the sentencing judge at [41] (set out at [31] above) that his Honour accepted the concession of the Crown that the applicant suffered from a major depressive disorder and that at certain points of time that disorder impaired her ability to consider carefully the consequences of her decision making. Further, his Honour was not incorrect in finding that the applicant had only taken steps to engage with mental health professionals after the offending came to light. The medical records tendered by the defendant demonstrate clearly that, for a variety of reasons, the applicant was not prepared to seek treatment or assistance for her mental health problems. She only commenced such treatment after the fraud was discovered and the search warrant had been executed.

72. Moreover, contrary to the submission of the applicant that the sentencing judge placed no weight on the mental health issues and the causal connection with her offending, and gave no consideration to reducing her moral culpability, his Honour accepted the concession of the Crown and accepted that her moral culpability was reduced, but not to any significant degree.

73. I would reject this ground.

Ground 1B:   His Honour erred in failing to consider hardship in custody arising from the applicant's mental health condition

Submissions

74. The applicant submitted that Dr Dayalan raised in his report that custody would be more onerous for the applicant arising from her mental health conditions. The applicant also pointed to the Crown’s statement in its written submissions that a sentence of imprisonment would weigh more heavily on the applicant than for a person of normal health. The applicant submitted that, nevertheless, the sentencing judge made no finding to that effect.

Determination

75. It may be accepted that Dr Dayalan raised this matter in his report. Contrary to the applicant’s submission, the Crown did not submit that the applicant’s mental state would weigh more heavily on her in custody, but that it may do so. However, no such submission was made on behalf of the applicant to the sentencing judge, as the applicant accepts in her written submissions in this Court. By contrast, the applicant submitted that the effect of any full-time sentence would be both hardship for the applicant’s children, particularly because of their [my emphasis] medical and mental conditions, and that it would be onerous for her not to be able to care for her children.

76. As this Court has observed on a number of occasions, sentencing proceedings are adversarial proceedings: Richards v R [2023] NSWCCA 264 at [58]; Edmonds at [26]. If a party does not make a submission that a particular finding ought to be made, the sentencing judge is under no obligation to examine all of the evidence and to raise issues for consideration. The obligation is for an applicant (or, in other cases, the Crown) to identify and raise for consideration the issue in respect of which they seek a favourable finding or determination.

77. In the present case, where the Crown had raised the possibility of the matter, and no submission was made on the applicant’s behalf, the sentencing judge was entitled to infer that no such finding was sought by the applicant, particularly where the Crown had submitted that Justice Health was equipped to deal with persons suffering from such conditions.

78. I would reject this ground.

Ground 2: His Honour failed to properly take into account repayment of money owed as evidence of the applicant's contrition pursuant to s 16A(2)(f)

Submissions

79. The applicant submitted that the evidence demonstrated that the debt of $171,718.30 had been fully repaid by the applicant. The applicant submitted that despite that evidence, the sentencing judge found that, in the absence of sworn and persuasive evidence of contrition or remorse, he could not be satisfied on the balance of probabilities that the applicant was genuinely remorseful.

80. The applicant submitted that this was because his Honour did not accept that repayment was, in itself, demonstrative of any remorse or contrition. The applicant submitted that this precluded his Honour from meaningfully considering the implications of the repayment on the question of contrition.

81. The applicant submitted that s 16A(2)(f) of the Crimes Act 1914 (Cth) requires the Court to take into account the degree to which the offender has shown contrition for an offence by taking actions to make reparations or any other factor relevant and known to the Court: Zhang v R [2011] NSWCCA 233 at [7]. The applicant submitted that it was not open for the sentencing judge to hold that there was no contrition in this matter, and not to take into account the degree to which the repayment evidenced contrition.

82. The applicant submitted that the ground was inextricably linked with the finding by the sentencing judge that his Honour was not satisfied that the applicant was genuinely remorseful. In that regard, the applicant relied on what was said in Hyunwook v R [2010] NSWCCA 148 at [32] that restitution was a powerful way to show remorse.

Determination

83. His Honour considered the question of the repayment and the issue of remorse as follows:

[43]   Insofar as remorse or contrition is concerned, Mr James KC, on your behalf, relied on the contents of Dr Dayalan’s reports; the plea of guilty; and the repayment which you have made (since April 2021, you repaid the total amount of your fraudulent criminality – the last instalment in the amount of $53,269.73 was paid on 9 June 2023).

[44]   In the absence of sworn and persuasive evidence of contrition and remorse, I am not satisfied that in fact you are genuinely remorseful – as opposed to being sorry for finding yourself in the position you currently are. The extended period of offending only came to an end after discovery. There were, as I have already said, many opportunities for you to discontinue the offending. The plea was entered in the face of a strong Crown case. The repayments are also capable of being regarded as steps taken by you to reduce the penalty you will receive.

[45]   In the result, I am not satisfised on the balance of probabilities that you are genuinely remorseful.

84. The sentencing judge was not obliged to find that there was some degree of contrition simply because the fraudulently obtained amount had been fully repaid. In circumstances where the sentencing judge was not satisfied of contrition and remorse, for reasons apart from the repayment of the funds, it was open to his Honour, for the reasons he gave, to conclude that the repayment of the funds itself did not constitute contrition. Nothing in s 16A(2)(f) or what was said in Zhang compels a conclusion that some degree of contrition must be found simply because a fraudulently obtained amount had been repaid. Other matters inform a determination of contrition, and the onus is on the applicant to show contrition on the balance of probabilities.

85. It may be accepted from Hyunwook that “actions speak louder than words” (at [32]), but in that case the offender gave sworn evidence in addition to making recompense. Further, there was no evidence here of any financial hardship to the applicant in repaying the money, especially in the face of a strong Crown case: R v Phelan (1993) 66 A Crim R 446 at 448. Finally, it is relevant that the amounts paid were raised as a debt by the Commonwealth and were the subject of a reparation order sought by the Crown. That made it inevitable that the applicant would be required to pay the full outstanding amount which could be enforced if unpaid.

86. His Honour’s conclusion was open to him, and no error is demonstrated.

87. I would reject this ground.

Conclusion

88. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

   89. HAMILL J:   I agree with Davies J.   

   90. HUGGETT J:   I agree with Davies J.   

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Decision last updated: 22 February 2024