Lewis v Duffin
[2012] TASSC 58
•18 September 2012
[2012] TASSC 58
COURT: SUPREME COURT OF TASMANIA
CITATION: Lewis v Duffin [2012] TASSC 58
PARTIES: LEWIS, Sue-Ellen
v
DUFFIN, Paul
FILE NO/S: 649/2012
DELIVERED ON: 18 September 2012
DELIVERED AT: Hobart
HEARING DATE: 14 September 2012
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Social security fraud – Significance of general deterrence – Whether actual imprisonment manifestly excessive.
Crimes Act 1914 (Cth), s16A(2)(p).
Criminal Code Act 1995 (Cth), ss135.2(1) and 136.1(1).
Hrasky v Boyd (2000) 9 Tas R 144, McCulloch v Tasmania [2010] TASSC 21; R v Verdins (2007) 16 VR 269; Startup v Tasmania [2010] TASCCA 5, referred to.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Applicant: J C Kitto
Respondent: S Wilson
Solicitors:
Applicant: James C Kitto
Respondent: Commonwealth Director of Public Prosecutions
Judgment Number: [2012] TASSC 58
Number of paragraphs: 32
Serial No 58/2012
File No 649/2012
SUE-ELLEN LEWIS v PAUL DUFFIN
REASONS FOR JUDGMENT WOOD J
18 September 2012
This motion to review concerns a sentence imposed by Magistrate Pearce on 25 July 2012. The applicant, Ms Sue-Ellen Lewis, pleaded guilty to one count of obtaining a financial advantage contrary to s135.2(1) of the Criminal Code Act 1995 (Cth), and 21 counts of knowingly making a false statement in an application contrary to s136.1(1) of the Code.She was sentenced to eight months' imprisonment and ordered to be released after serving three months of that sentence upon her entering into a recognizance, without surety, on the condition that she is to be of good behaviour for two years. After serving three days of her sentence, the applicant was granted bail pending the hearing of this motion.
The details of the offending and the factual basis for the sentence are as follows.
During a period between 14 May 2007 and 3 July 2009 the applicant made false declarations to Centrelink and received an overpayment of Newstart Allowance of $21,221.49. She earned a total of $48,716.46 but only declared $6,220.30.
In applying for the allowance in the first place, the applicant was interviewed to assess her eligibility for Centrelink. She provided a bank statement to support her claim. During the interview she stated that she was not working. She lied about two deposits shown on the bank statement, stating they were a birthday gift to her son, when in fact they were income from her current employment. Thereafter she was required to report her gross earnings to Centrelink during a period involving 53 fortnights. She falsely declared that she was not receiving employment income on 29 occasions, and she under-declared her income on the other 24 occasions. In most instances the applicant provided false information in a form being an Application for Payment Form for Newstart Allowance, and on seven occasions the false information she provided was by telephone.
Count 1 related to the period between 14 May 2007 and 4 August 2008. During this period the applicant worked for four employers. She failed to declare that she was working for two of those employers, Lake Oval and Old Launceston Seaport trading as Peppers Seaport Hotel, when in fact she earned $10,911.43. She significantly under-declared her earnings from her two other employers, Colonial on Elizabeth and Diabetes Australia. In that regard, she only declared approximately 9% of her earnings. Counts 2 to 22 relate to false statements made by the applicant during the period 15 August 2008 and 3 July 2009 when she was working for Colonial on Elizabeth and Diabetes Australia. On two occasions she failed to declare any of her earnings, and on the other occasions she significantly under-declared her income. During the period covered by these counts she only declared approximately a fifth of her earnings.
Approximately halfway through the period of offending, Centrelink informed the applicant that a debt had been raised as a result of her under-declaring her earnings from employment with Diabetes Australia. Despite this, she continued to provide false information with respect to her earnings. Her employment situation and true earnings came to light after a review conducted by Centrelink. At the time of sentencing reparation had not been made and there was no repayment plan in place.
The grounds of appeal are:
"1That the learned Magistrate erred in law in that in all the circumstances the sentence imposed was manifestly excessive.
2The learned Magistrate erred as to a matter of fact in that he sentenced the applicant on the basis that she had earned $55,683.08 when in fact she had only earned $48,716.46.
3The learned Magistrate erred in fact in sentencing on the basis that most of the declarations were in writing during the 53 fortnightly periods when in fact only 21 were in writing."
The first identified error in ground 2, regarding the amount of earnings, was a reference to a figure referred to by the prosecutor in the statement of facts. Evidently, it was incorrect. A table of earnings provided during the course of the statement of facts by the prosecutor reveals the earnings were in fact $48,716.46. Regardless of that error, the relativities between the earnings and the amount declared are much the same and the difference is not so significant that it would have had any bearing on the sentence. This ground of appeal reveals an inaccuracy but it is inconsequential.
The second specified error relates to the number of declarations made in writing. The magistrate stated, "During the period you under declared income 24 times and falsely declared that you were not receiving employment income on the other 29 occasions. Most of the declarations were in writing." The proposition that most of the declarations were in writing accorded with the facts provided by the prosecutor. The facts stated by the prosecutor included that the:
"… defendant was required to report her gross earnings to Centrelink during the complaint period comprising 53 fortnights. In the vast majority of cases the defendant reported by way of an Application for Payment Form for Newstart Allowance and on seven occasions she reported by telephone".
Submissions for the applicant focussed on the fact that only counts 2 – 21 particularise a false statement in an application. However, it is apparent from the facts provided to the magistrate that conduct relating to count 1 also involved the provision of written forms that were falsely completed by the applicant. No factual error has been shown.
I turn to consider the substantive ground of appeal as to whether the sentence is manifestly excessive.
At the time of sentencing the applicant was 49 years of age and employed as a medical receptionist. She had two children, aged 17 and 19 years. Her earnings were modest and a substantial portion was spent on rent and necessary expenses.
Matters of background were relevant. Her relationship with the father of her children had been very difficult. He was an alcoholic and had been abusive towards her physically and emotionally. About 10 years before she was sentenced she had escaped the relationship, but had been unable to take the children with her because of pressure that he had subjected her to, and threats he had made. She left the relationship with no assets or any belongings at all. Her financial situation was very difficult. She obtained work in the hotel industry and went into debt in order to purchase items she needed to establish herself.
Just before her offending commenced her earnings had significantly reduced as she had lost a part-time position. Her eldest child had come to live with her, and her youngest child was staying with her for substantial periods of time. Her financial circumstances were very strained. Other matters regarding her personal circumstances and in mitigation are as follows:
· During the period of offending there had been a number of changes of employment. She was employed on a casual basis; her hours of work fluctuated and there was uncertainty about her future prospects.
· The money she received as a result of her offending was spent on basic living expenses for herself and her children.
· A report provided by Dr Gerry Vanderslink, who was both her treating medical practitioner and also worked at the medical practice where she was employed at the time of sentencing, reveals that she had long-standing mental health issues which had relevance to her offending. In 2010 she had been diagnosed as suffering from a depressive disorder. She had abused alcohol in the past. He notes that in the past decade there were periods when she was very down with depression, and episodes when she was "quite high with hypomania".
· At the time of sentencing, there had been substantial improvement in her mental health. She had reduced her alcohol intake. The report revealed that early in 2012 she was diagnosed with a bipolar-type disorder for which she was receiving medication, and that her condition was stabilising.
· It was unlikely she would reoffend.
· She had no relevant prior convictions.
· The medical report I have mentioned reveals that she is highly regarded by her current employer. A reference provided by Mrs Shan Griffiths, manager of a Launceston business, who had known the applicant for 23 years, describes the applicant as honest and a person of integrity. She described her as a person who would do whatever she could to aid anyone in need, even to the detriment of her own health and well-being. She is a devoted mother and has worked hard over the years to provide for her children.
· The period of offending concluded in July 2009. It was not until December 2011 that court proceedings were instituted.
· The applicant had pleaded guilty at a very early stage.
In addition to these matters, counsel for the applicant relied upon the contents of a short pre-sentence report sought by the magistrate as to her suitability for community service and a probation order. The report recommended that the applicant be sentenced to a community service order. In relation to a probation order it stated: "Given the lack of criminogenic issues identified during the interview Ms Lewis is considered not suitable for a Probation Order at this time." The recommendation strongly endorses her suitability for community service and is a positive indication, given her lack of "criminogenic issues", of her prospects of rehabilitation.
It was submitted for the applicant that the report indicated that there were alternative sentencing options open to the magistrate, and the recommendation for community service seemed contrary to the conclusion reached by the magistrate that a term of imprisonment was the only appropriate sentence. However, the reason the magistrate did not impose an alternative sentencing option was not due to any question about the unavailability of an alternative option, but because he reached the view that imprisonment was required. He made that clear in the sentencing remarks when he said that a sentence "other than a term of imprisonment would not be an adequate punishment".
Aspects of Dr Vanderslink's report were relied upon by the applicant as indicating the applicant's responsibility for offending was reduced. It is convenient at this stage to refer to the substance of this report. At the time of sentencing, Dr Vanderslink was the applicant's general practitioner. The applicant was first seen by Dr Vanderslink as a patient in October 2010. In September 2011 she complained of anxiety regarding family issues, and although a diagnosis of depression was not made at that time, it appeared to Dr Vanderslink that she had depressive features. In January 2012 she was treated for anxiety problems, and after a diagnosis of depression she was treated with anti-depressants and medication for anxiety. Her anxiety and depression had contributed to her abuse of alcohol, and after taking medication and better control of her condition, her intake of alcohol decreased. The causes for her depressive disorder were identified as relating to long-term abuse, long-term problems with partners and also her children. Her symptoms of being very down with depression and hypomania, fit with a bi-polar disorder. Her history indicates that she has been suffering from those episodes for some time. Dr Vanderslink stated: "On going through her history it appears that she has had episodes of being very down with depression and also episodes of being quite high with hypomania. This would result in her not being completely responsible for some of her actions." At the time of the report she was receiving treatment for a bi-polar disorder and responding well. Subsequently, he stated in the report that it was the episodes of hypomania which may have affected her responsibility. Dr Vanderslink stated: "maybe in the past, some of her actions may have related to episodes of hypomania where she may have not been responsible for some of her actions". The report did not explore in any detail the connection between the applicant's bipolar condition and her offending, and it did not reveal how the particular condition of bipolar disorder may have affected the applicant's mental functioning, or otherwise reduced her moral culpability.
A person's psychological condition which contributes to their offending is a mitigatory factor, having relevance to an assessment of moral culpability, and, depending on the condition, the need for deterrence: Startup v Tasmania [2010] TASCCA 5, McCulloch v Tasmania [2010] TASSC 21, per Porter J at par[16], R v Verdins (2007) 16 VR 269.
There are various ways in which impaired mental functioning has been held to reduce moral culpability. Some of these have been set out by the Victorian Court of Appeal in R v Verdins at par[26]. Central to the court's consideration of the extent to which impaired mental functioning may reduce the blameworthiness of the offender's conduct is the nature and severity of the condition: par[25]. The sentencing court needs to consider how the particular condition is likely to have affected the mental functioning of the particular offender in the particular circumstances, par[13]. It was noted at par[13] that "where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry." In this case the magistrate was presented with little more than the beginning of the inquiry. The report provided very limited information as to how the mental functioning of the applicant at the time of offending may have been affected by her condition.
The report, read in its entirety, is not definite about the existence of a causal connection between the applicant's condition and any of her criminal actions. Presumably Dr Vanderslink could not be more certain, given the lapse of time since her offending. Further, it is not suggested that her condition would have been a major or even a significant contributing factor with respect to any of her offending. The learned magistrate referred to Dr Vanderslink's report, "The report from your doctor also describes your current treatment for anxiety and depression contributing to abuse of alcohol and interpolates that your then untreated condition may have contributed to some of your actions" (my emphasis). These comments are an accurate reflection of the contents of the report, noting the doctor's tentative expression of a link between some of the applicant's offending and her condition.
Beyond the indication that there may be a measure of reduced culpability for some of the applicant's offending conduct attributable to her mental health issues, Dr Vanderslink's report is of assistance to the applicant. It provides support for the extenuating circumstances of her offending such as the reasons for her financial difficulties, the situation regarding her former partner, and her anxiety regarding her children. It reveals that she has a history of depression and anxiety and that her symptoms have contributed to her abuse of alcohol. The report provides that she is receiving appropriate treatment, her intake of alcohol has decreased, and that her condition is stabilising.
It is evident that the learned magistrate regarded general deterrence as a prominent consideration in the sentence he imposed. He stated:
"Courts in this State and in other States have repeatedly emphasised the importance of imposing a sentence that will deter the commission of offences like this. They are prevalent, difficult to detect and impose an additional burden on all taxpayers. Centrelink trusts the honesty of claimants when assessing applications."
These factors are important considerations and the learned magistrate's remarks reflect well-settled authority which emphasises the importance of general deterrence: Hrasky v Boyd (2000) 9 Tas R 144 at par[20].
It is submitted for the applicant that while the head sentence of eight months' imprisonment was appropriate, a sentence which could have been imposed was that the applicant be immediately released, rather than required to serve any portion of the sentence. However, this Court cannot substitute another sentence merely because it was reasonably open to the magistrate to impose a more lenient sentence. The motion to review may only be upheld if the sentence is so manifestly excessive that error has been shown. The question may be posed this way, is the sentence plainly outside the proper limits of the wide discretion vested in the magistrate? (Allen v Kerr [2009] TASSC 10). The sentence will be seen as erroneous if it is unreasonable or plainly unjust: House v R (1936) 55 CLR 499 at 504.
There were features of the offending that the learned magistrate considered were serious. He identified these as:
"(a)your offending arose not from an isolated event but from a course of conduct that continued over a period of just over 2 years;
(b)your offending was deliberate, sustained and repeated. You were made aware of the possible consequences of your actions. Some overpayments were discovered during the relevant period but you continued to make false declarations;
(c)the breach involves a substantial sum of money."
I respectfully agree that those features are serious aspects of offending in this case. Also, as noted by the learned magistrate elsewhere in his comments on passing sentence, the applicant was deceptive in her representations to Centrelink from the outset in applying for the allowance. It cannot be said that in this case the learned magistrate erred in attaching significance to the need for general deterrence.
The learned magistrate's comments on passing sentence reveal that he took into account the matters in mitigation with respect to the applicant's circumstances and her offending.
The learned magistrate noted her good character:
"I was shown a report from a doctor from the medical centre at which you are employed. He is also your treating general practitioner. He attests that you are highly regarded. A reference from a friend and colleague expresses a similar view on both a personal and professional level. You have no relevant prior convictions. However, good character and a good record have limited weight in the sentencing process because of the importance of general deterrence."
The latter comment regarding the allocation of limited weight to good character and good record does not suggest a lack of regard for these considerations. Rather, the comment refers to the final analysis, and explains that in the process of fixing the sentence, the mitigatory effect of good character and good record was outweighed by the need for general deterrence.
The magistrate also took account of the applicant's financial difficulties, the reason for those difficulties being the termination of a long term abusive relationship, her mental health and treatment. The learned magistrate stated:
"Your counsel described the difficulties you say arose from the termination of a long term but abusive relationship which left you without income or assets and without your children. The financial difficulty you faced was amplified when your children later returned to your care. The report from your doctor also describes your current treatment for anxiety and depression contributing to abuse of alcohol and interpolates that your then untreated condition may have contributed to some of your actions. I regard those matters as falling far short of providing a sufficient explanation for prolonged dishonesty."
It is evident from the sentencing comments that the magistrate had regard to Dr Vanderslink's opinion that the applicant's untreated condition may have contributed to her offending. However, he found that this matter fell "far short of providing a sufficient explanation for prolonged dishonesty". The point made was that the report did not go so far as to show that the applicant's untreated condition accounted for her offending, or that there was a causative link with her offending. It was open to the learned magistrate to take that view noting that her offending was sustained over a two year period; that the medical report, at its highest, reveals that her condition may have contributed to only "some" of her offending conduct; the tentative nature of the opinion that her condition contributed to her offending; the lack of detail regarding any impairment with respect to the applicant's mental functioning; and, that the report does not suggest her condition would have been a significant factor in any part of her offending.
The learned magistrate acknowledged the delay in bringing the prosecution and attributed some mitigation to this factor, as well as the applicant's guilty plea. He noted that a prosecution was not commenced until December 2011 and stated that, "Some of the delay may be attributable to the investigation and your failure to take up the opportunity of an interview but I consider that some mitigation arises from the period during which these matters have been hanging over your head." In my view it was appropriate for weight to be given to this factor, noting that in the period of delay the applicant had sought treatment for her psychological condition and made good progress, which was relevant to her rehabilitation.
The magistrate also took account of the effect that the sentencing order will have on her family, particularly her children, now young adults. Pursuant to the Crimes Act 1914 (Cth), s16A(2)(p), the effect on family is a factor that must be considered. However, the impact of a sentence of imprisonment upon members of an offender's family should not be given weight in the sentencing process unless there is exceptional hardship: McAree v Barr [2006] TASSC at par[21]. In this case, there was no suggestion of exceptional hardship.
As I have said, the magistrate's sentencing comments disclose that the magistrate was mindful of the mitigatory considerations in this case. Notwithstanding these considerations, the magistrate concluded:
"I have formed the view that anything other than a term of imprisonment would not be an adequate punishment and some [of] the term is to be immediately served."
It was entirely reasonable for the magistrate to reach this view in light of the prominence that he gave to general deterrence, and in light of the serious aspects of the applicant's offending. While the matters in mitigation warranted a degree of leniency, appropriate weight was given to these matters by suspending a substantial portion of the sentence. The imposition of an immediate term of imprisonment does not disclose a failure to afford adequate weight to the positive considerations in this case. The sentence, in terms of both the head sentence of eight months and the period of three months to be immediately served, was within the proper limits of the magistrate's sentencing discretion. This ground must also fail.
The notice to review is to be dismissed.
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