Lugg v Johnston No. Scgrg-98-1387 Judgment No. S6944

LUGG v JOHNSTON
[1998] SASC 6944

Magistrates Appeal: Criminal

OLSSON J. This is an appeal against a sentence imposed on the appellant by a stipendiary magistrate, consequent upon her pleading guilty to 33 charges under the provisions of the Social Security Act 1991 (Cth). The learned magistrate imposed a single penalty of imprisonment for 15 months in respect of all offences. However, she ordered that the appellant be released after serving a period of four months imprisonment, upon entering into a bond in the amount of $500 to be of good behaviour for a period of two years. The learned magistrate also ordered reparation in the amount of $15714.90.
The appellant relies upon three grounds namely:-
That the sentence imposed was manifestly excessive;

That the learned magistrate failed to give sufficient weight to the appellant's psychiatric state; and

That the learned magistrate failed to give sufficient weight to the appellant's sole responsibility for her daughter.

Three of the counts against the appellant alleged the making of a false statement in an application for payment of a supporting parent's benefit. All other counts related to the obtaining, by the appellant, of a series of payments of a supporting parent's benefit to which she was not entitled. The offences were committed over a quite lengthy period, extending from August 1996 to 19 March 1998 - that is to say, a period of approximately one and a half years. The amount of the reparation order made reflects the total amount of the overpayment received by the appellant. The offences were committed by reason of the fact that the appellant continued to claim entitlement to receive or to retain payments of the supporting parent's benefit despite having become employed. Her employment was initially casual and then increased to a full-time engagement. Over the period in question the appellant’s income increased from $800-$2385 gross per fortnight.
As the learned magistrate pointed out, it was a circumstance of aggravation, in relation to the offences committed, that, in June 1996, there was an incident whereby the appellant received a minor overpayment at a time when she had received income from employment. At that time the department had reminded her of her obligations, but took no further action. Only some two months later the present series of offences commenced. In the circumstances, the learned magistrate, quite correctly, took the view that the present offences were both calculated and deliberate. No doubt they were committed against the background and, to some extent, influenced by the fact that the father of the appellant’s child was not making child support payments.
The learned magistrate had the benefit of a psychiatric report related to the appellant, as well as detailed oral submissions made on her behalf.
She noted that the appellant was a 34 year old woman who was the mother of one child aged three years, for whom she had sole responsibility. Her only prior conviction was for a minor, rather senseless, shop lifting offence committed in 1996, when, it was said, she was depressed.
The appellant was born in Ballarat and has had the benefit of a good education. Since leaving school she has successfully undertaken nurse training as an enrolled nurse. She has also had psychiatric training which enabled her, during the period of the offending, to obtain employment at Glenside hospital.
Prior to October 1996 the appellant had been living in Darwin for some years. Whilst there she had formed a relationship with a man who was the father of her daughter. The reporting psychiatrist recorded a history of depression, dating back to the time of the birth of the appellant's daughter. This was subsequently exacerbated following a miscarriage in October 1996. The relationship with her then partner had been deteriorating and eventually ended. Difficulties arose with regard to payment of maintenance for the daughter. This situation led to an exacerbation of her depression.
After October 1996 the appellant moved from Darwin, initially to Melbourne and later to Adelaide, where her sister lives. Although she was becoming increasingly depressed and suffered a significant weight increase over time, she began working casually as a psychiatric nurse, initially on night duty. This was so despite the fact that she has, at least in recent times, been taking antidepressant medication.
According to the psychiatric report the appellant gave a case history to the effect that the father of her child became abusive and aggressive when he found her to be pregnant and took no responsibility for her or the child. This was said to be the genesis of her depression.
It was the opinion of the psychiatrist that, when he saw her in August last, the appellant was suffering from a major depressive disorder. He expressed the view that such disorder was likely to have clouded her judgment and, as a result, contributed to her offending. He further said in his report that a custodial sentence would be detrimental to her psychiatric health. It would place her at significant risk of suicide. Separation from her child would also be detrimental to her. He added that she required regular treatment over the next 6 to 12 months; and would not be able to receive the necessary treatment if she were given a custodial sentence.
As at the time of sentencing the appellant had lost her job at Glenside hospital, due to inquiries made by the department. She was again in receipt of a supporting parent's benefit. Since then she has had some irregular, part time employment. I accept that the job loss was a significant de facto punishment in its own right. Moreover, there is some suggestion that a requirement actually to serve a custodial sentence may place her nurse registration in jeopardy.
It is now said that she is attempting to secure the release of accrued superannuation benefits to which she is entitled, with which to make reparation. It is by no means clear that these efforts will be successful.
Having considered all of the matters placed before her, the learned magistrate had this to say:-
“I take all those factors into account. I note her particular circumstances. I am acutely aware of the fact that she has the care of a three and a half year old child and I note the initial diagnosis made by Dr. Kelly. Those factors certainly go to mitigation but opposed to them is the fact that this is a serious offence. It is a large amount of money obtained dishonestly, over a lengthy period of time. In my view there is no question that it requires a period of imprisonment to be imposed and I am of the view that the leniency to which she is entitled should be reflected not in suspension but in the fixing of an earlier than usual release date.”

She thereupon imposed the sentence the subject of the appeal.
On the appeal, counsel for the appellant stressed the mental health condition of the appellant, the opinion of the psychiatrist as to the likely affect of imprisonment on her, and the likely adverse effects upon both her and her young child of their separation. He also pointed to her prior lack of significant antecedent background. It was submitted that, having regard to these features of the case, the requirement to actually serve a period of imprisonment would be unduly harsh. He also argued that, having regard to other sentences imposed, the period ordered to be served before release was an unduly high proportion of the head sentence, given the substantial mitigating features.
Whilst all of the factors referred to must, of course, attract sympathy and be taken into account, together with the timely pleas entered by the appellant, nevertheless, there are very significant countervailing considerations which the learned magistrate was bound to take into account.
It cannot be overlooked that the offending in question was quite deliberate and extended over a very significant period of time. The amount in question was extremely large. It may be a moot point whether this case was an example of need or greed, bearing in mind the lack of child support, a need to pay for child care and the effect of the appellant’s depression. No doubt, the conduct of the appellant was partly influenced by the failure of her former partner to provide adequate support for her young child, but it cannot be ignored that, for much of the time, she was in full-time, well paid employment. Furthermore, it must firmly be borne in mind that, prior to the commencement of the present period of offending, the appellant had already received the warning from the department about the earlier receipt by her of benefits to which she was not entitled. That warning was ignored.
Moreover, the weight to be attributed to the lack of a significant antecedent background in this case is relatively small. As was pointed out by counsel for the respondent in his outline, it is well established by the authorities that, in circumstances such as those in the instant case, the appellant necessarily lost the benefit of relatively good prior character by continuing to offend over a long period of time (R v Schneider (1988) 37 A Crim R 395 at 397. See also the reasoning in R v Veen (1988) 164 CLR 465).
Certainly the psychiatric history of the appellant must be given due regard, but there is no substantial basis for concluding that, by virtue of it, she did not appreciate the quality or enormity of her conduct. On the other hand, it must be accepted that the medication which she was taking may well have blunted her judgment. The psychiatric report makes that point quite specifically.
In approaching this matter the learned magistrate was required to pay due regard to the various announcements of this court concerning the approach which ought to be adopted to offences of this generic nature. As was said by me in Laxton v Justice (1985) 38 SASR 376 at 381, offences of this type are prevalent and often difficult to detect, at least over the short term. Penalties must reflect a concern for the protection of the revenue. I further pointed out that frauds of this type must be viewed seriously, because they threaten the basis of the Social Security system - which is designed to provide financial security for those in the community who are in need. Thus the factors of personal and general deterrence must be accorded considerable weight. Similar points were made by King CJ in R v Cameron and Simounds (1993) 171 LSJS 305 at 307. (See also what was said by me in Flavel v Venning (Olsson J, 16 July 1996, S3507, unreported). In conceptual terms, the points there made are apposite to this case.)
There is not the slightest doubt that the learned magistrate directed her attention to all relevant considerations in arriving at the sentence which she imposed. It is trite to say that this court ought not to interfere with her decision unless the appellant can demonstrate that her discretion miscarried by reason of some misapprehension of principle, a misunderstanding of relevant facts, failure to take into account relevant circumstances, or the taking into account of extraneous considerations. If, of course, the manner in which a discretion is exercised is such that no reasonable tribunal could exercise it in that way unless it had erred in one of the above respects, it will be concluded that such error has occurred, although none is disclosed (Uznanski v Searle (1981) 26 SASR 388 at 389). In my opinion the appellant faces a very uphill task in attempting to do this.
Not only is the head sentence imposed a proper reflection of the gravity of the offending, but the release date appointed gives rise to a relatively modest period actually to be served in custody. Even making maximum allowance for the mitigating factors identified above it is very difficult, reasonably, to say that demonstrable error has been identified.
I think that it has to be recognised that, as Mr Loftus of counsel for the respondent pointed out, if the impact of the service of a custodial sentence on the appellant’s child is to be a salient factor then it would almost follow that there would be few, if any, cases related to over payments of sole supporting parent benefits in which a requirement for such service could be upheld. That cannot be the situation in significant cases of deliberate conduct, such as those now under consideration.
One factor which can be recognised is that, since being sentenced, the appellant has spent two days in gaol before bail could be arranged. She has now, literally, heard the clang of the prison gate behind her. I have little doubt that this has made a profound impact on her. Her sister cared for her child during that time and would care for the child during any period of imprisonment which she has to serve.
I am very conscious that, in sad cases of this type, one has to be careful not to allow sympathy to dictate an outcome which is not in accord with the clear duty of the court (cf King CJ in Loveridge v R (1994) 178 LSJS 234 at 236). However, a very concerning aspect is the serious degree of depression suffered by the appellant and the somewhat dire prognostication of the reporting psychiatrist. This is the one factor of mitigation unique to this case - the more so as the diagnosis of major depressive disorder was arrived at before the appellant appeared before the learned magistrate.
At the end of the day I am by no means convinced that it can properly be said that the learned magistrate fell into error in her broad approach. This is not a situation which calls for an immediate release order. However, having heard the detailed and earnest submissions made by Mr Tilmouth QC on behalf of the appellant, I am persuaded that this is a case in which it is proper to accord some degree of leniency and mercy to the appellant. Imprisonment is likely to bear harder on her than most persons and a more modest period of imprisonment will, undoubtedly, satisfy the factors of personal and general deterrence.
But for her psychiatric condition I would not interfere at all. However, such is its seriousness and likely effect on the appellant (both at the time of the offences and also on serving any sentence) that I feel, by a fine margin, that a requirement to serve four months will operate in an unduly harsh manner.
This is a borderline case, but, after careful and anxious consideration, I am disposed to allow the appeal, set aside the non release period imposed and substitute for it a period of two calendar months, in addition to the two days already served. I agree with the learned magistrate that, in light of the authorities, this is not a case in which an immediate release order could properly be made. I also agree that, in a run-of-the-mill case involving a period of time and quantum of money such as is now under consideration, a requirement to serve at least four months would, by no means, be inappropriate.
There will be orders to give effect to the conclusion to which I have come.

[1998] SASC 6944

17 November 1998