PANELLA v Wanganeen - [2018] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PANELLA v WANGANEEN
[2018] SASC 100
Judgment of The Honourable Justice Peek
19 July 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Prosecution appeal against sentence.
The respondent pleaded guilty to four counts of obtaining a financial advantage for herself from the Commonwealth to which she was not entitled, contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). It was agreed that over three years, she made 91 false declarations to Centrelink, fraudulently obtaining a total of $30,447.76.
After successful participation in the Mental Health Diversion Programme of the Aboriginal Community Court Programme, the Magistrate on sentencing declined to record a conviction and imposed a single sentence being a two-year recognizance to be of good behaviour, pursuant to s 19B(1) of the Crimes Act 1914, and ordering full reparation.
On appeal, the respondent conceded that the Magistrate was in error in imposing a recognizance without conviction and that a re-sentencing was required.
Held per Peek J (allowing the appeal):
Having regard to all of the facts and circumstances, it is appropriate to sentence the respondent to one year imprisonment and order that the respondent be released forthwith on a recognizance to be of good behaviour pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The order for full reparation remains in force.
Criminal Code Act 1995 (Cth) s 135.2; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA); Crimes Act 1914 (Cth) s 19B, s 20, s 16A, referred to.
The Queen v Pham [2015] HCA 39; R v Holdsworth [1993] QCA 242; Kovacevic v Mills (2000) 76 SASR 404; Director of Public Prosecutions (Commonwealth) v Milne [2001] VSCA 93; R v Cameron (1993) 171 LSJS 305, discussed.

PANELLA v WANGANEEN
[2018] SASC 100
Magistrates Appeal: Criminal
PEEK J.
Introduction

On 9 May 2017, the respondent, Glenice Anne Wanganeen, pleaded guilty to four counts of obtaining a financial advantage for herself from the Commonwealth to which she was not entitled, contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) in that she failed to declare to Centrelink income while she was in receipt of social security payments.
Upon pleading guilty, she was referred to the Mental Health Diversion Programme of the Aboriginal Community Court Programme at Elizabeth. She participated successfully in this programme, and her final report (which constitutes a certificate under the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) was dated 2 March 2018.
On 5 March 2018, the matter was called back on before Magistrate Broderick (and Aboriginal Elders, Tony Hughes and Kenneth Tilbrook) for sentencing. The Magistrate declined to record a conviction, and imposed a single sentence for the four counts, being a two year recognizance to be of good behaviour, pursuant to s 19B(1) of the Crimes Act 1914 (Cth). His Honour also ordered that the respondent make reparation to the Department of Human Services of $30,447.76.
The complainant appeals against this penalty on two grounds:
1. The learned Sentencing Magistrate erred in law in his application of the test outlined in s 19B of the Crimes Act 1914 (Cth) and it was not open to the Learned Sentencing Magistrate to be satisfied that the terms of that section were met.
2. The sentence imposed was manifestly inadequate.
In respect of the first ground of appeal, the respondent conceded that the Magistrate was in error in imposing a recognizance without conviction pursuant to s 19B of the Crimes Act 1914 (Cth) in the present circumstances and that the respondent should be resentenced by this Court.
The appellant’s submissions on re-sentencing
Counsel for the appellant referred to a number of factors in the present case which, she submitted, increased the objective seriousness of the offending. These included:
-    That the offending was sustained, occurring over three years and comprising 91 separate false declarations, being ten false ‘nil income’ declarations and 81 false under-declarations;
-    That the offending involved intentional fortnightly deceptions when she positively misrepresented her income in her declarations to Centrelink, as opposed to a passive misrepresentation (such as a failure to notify of changed circumstances);
-    That the respondent was well aware of her reporting obligations: she had previously been cautioned on 5 June 2007 and 23 July 2014 by Centrelink when she had not correctly reported her employment income;
-    The relatively high total amount of $30,447.76 fraudulently obtained here; and
-    The seriousness of such social security fraud in that it threatens a system which is designed to provide financial security for those community members in need.[1]
[1]    Counsel also noted that the respondent has a previous finding of larceny. However, I consider that this is of little weight in that no conviction was recorded and it was over 20 years ago, in 1995.
Counsel for the appellant referred to the judgment in The Queen v Pham in which the High Court held that state courts are obliged to have regard to judgments of the interstate appellate court as to both the applicable principles, and the yardstick of available sentences, under federal law. Thus French CJ, Keane and Nettle JJ there stated:[2]
As Hili v The Queen[3] made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.
It follows that to approach the sentencing task on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the State or Territory where the offender is sentenced is an error that is likely to result in just the kind of inconsistency that the Australia-wide approach mandated by Hili is calculated to avoid.
[2] [2015] HCA 39, [18]-[19].
[3] (2010) 242 CLR 520, 538 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45.
Their Honours later observed:[4]
As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles;[5] and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.[6]
[4] [2015] HCA 39, [26].
[5] (2010) 242 CLR 520, 535 [49], 538 [57].
[6] (2010) 242 CLR 520, 537 [54]; see also Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 70-71 [303]-[305] (Simpson J).
And later:[7]
It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong. It is also settled that a “sentence itself gives rise to no binding precedent”.[8] Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate (although not define) the possible range of sentences available.[9]
[7] [2015] HCA 39, [29].
[8] Wong (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 596 [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 10.
[9] Hili (2010) 242 CLR 520, 537 [54]; Barbaro (2014) 253 CLR 58, 74 [41].
I have regard to comparable sentences imposed, including those in the cases referred to by the appellant.[10] I note that it may be taken from the authorities that deliberate defrauding of the Commonwealth such as in the present case will usually call for a custodial sentence due to the primacy of the need for general deterrence. Thus in R v Holdsworth, Pincus JA and Thomas J stated:[11]
It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught. Any notion that the Commonwealth and its departments are fair game for this type of activity is to be resisted. In this context it is to be noted that in the pre-sentence report the respondent is described as having “attempted to objectify the offences and view them as victimless crimes on the basis that he never set out to hurt or disadvantage any particular individual or group”. Activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud governmental agencies will find an unacceptable risk.
[10] Including those referred to in 'Annexure A' to the appellant's outline of argument: Ralph v Nawrojee [2003] WASCA 5; Kovacevic v Mills [2000] SASC 106; Feenstra v Pomare [2017] WASC 344; Dimech v Watts [2016] ACTSC 221; Haddington v Department of Human Services and Health [2014] SASC 57; Gaston v Sweet [2013] NTSC 84; Guerrero v Dickson [2013] WASC 246; Cloros v Centrelink [2013] SASC 74; Leckie v Department of Human Services [2012] SASC 197; Perceval v Quirk and Chamberlain [2012] ACTSC 174; Arkrie v DPP (Cth) [2012] WASC 200; Donohoe v Howe [2010] TASSC 7; DPP (Cth) vMoroney & Ors [2009] VSC 584; Macri v Moreland [2008] WASC 194; Potts v Bonnici [2009] SASC 199; Evans v Commonwealth Services Delivery Agency [2009] SASC 75; Emms v Barr [2008] TASSC 49; Esplin v Raffan [2008] WASC 42; Moreland v Snowdon [2007] WASC 137; Nolan v Jarvis [2006] TASSC 64; Harding v Moreland [2006] WASC 8; Lutter v Hubbard [2000] WASCA 248.
[11] [1993] QCA 242, 7.
In Kovacevic v Mills (‘Kovacevic’),[12] the South Australian Full Court considered the role of sentencing for offences such as wrongfully obtaining financial benefit from the Commonwealth, the relevant offence then being that created by s 1347(b) of the Social Security Act 1991 (Cth). Doyle CJ, Mullighan, Bleby and Martin JJ there stated:[13]
[12] (2000) 76 SASR 404, referred to, for example, in: Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; Whyte v Director of Public Prosecutions (Cth) [2008] SASC 310 (Doyle CJ); Evans v Commonwealth Services Delivery Agency [2009] SASC 75 (Kelly J); Eglite v DPP (Cth) [2010] SASC 172 (Kelly J); Twigden v Centrelink [2010] SASC 154 (Gray J); Paton v Low [2011] SASC 12 (Nyland J); and Leckie v Department of Human Services [2012] SASC 197 (Stanley J).
[13] Ibid, 411-412.
In our opinion King CJ was right to emphasise in Cameron the responsibility of the courts to protect the integrity of the social security system, and the need for a firm approach to offences involving sustained and deliberate fraud. In particular, the Court must do what it can to deter such offending. Offences of the type in question are common. The fact that such offending occurs over a longish period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. And it is true that sustained fraud against the social security system tends to undermine it, and because of its widespread and insidious nature, to impose substantial costs upon the community.
Nevertheless, we cannot fully subscribe to one aspect of what King CJ said in Cameron, encapsulated in the following passage (at 307):
Nevertheless, in cases of this kind, that is to say of sustained and deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount. The necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations.
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.
In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v 0‘Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212- 213.
In some cases the length of the period during which the offending occurs, or the amount involved, or the devices used to effect the fraud, is likely to lead a court to conclude that a sentence of imprisonment actually to be served is required. As is always the case in sentencing, and as Cox J said in R v King, a sentencing standard is a general guide to those who have to sentence in the future, with certain tolerances built into it.
We agree with what Mullighan J said in Keeley v Department of Social Security (unreported, Supreme Court, SA, Mullighan J, No 1093 of 1993, 30 July 1993):
I do not think the Full Court in R v Cameron, in saying that the deterrent purpose of punishment must be paramount, was laying down a principle of sentencing that in all cases of fraud against the welfare system mitigating features of the circumstances of the offence and the offender can never assume prominence. The Court was speaking of the type of serious fraudulent conduct which it there had to consider. In the more serious types of cases, the need to deter others who are minded to deliberately and systematically defraud the system must prevail over matters of mitigation. However, in less serious cases the need for deterrence will not be paramount.
In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.
To that extent only we would depart from what this Court said in Cameron.
There is one further thing that should be said. While imprisonment is likely to be required, it is preferable not to say that a case must be exceptional before a different approach is taken. For example, some offenders in this area are persons whose circumstances are extremely difficult, indeed distressing. An offender might be virtually destitute, with dependants to support. An offender might act as a result of domestic pressures that few people could withstand. That might be a circumstance, coupled with other circumstances, that warrants a more merciful approach in imposing sentence, even though it is a circumstance which is not wholly exceptional, because it tends to recur with this type of offending. It is for that reason that it is safer to say that imprisonment is the starting point, rather than that the case must exhibit exceptional features before a court can properly refrain from making an order for imprisonment. In saying this we do not intend to undermine our earlier statement that in cases of sustained and deliberate fraud, imprisonment is likely to be required.
In Director of Public Prosecutions (Commonwealth) v Milne, Winneke ACJ (with whom Ormiston and Buchanan JJA agreed) stated:[14]
In circumstances where extensive frauds on the welfare system have been perpetrated over a long period, a significant purpose of punishment must, in my view, be general deterrence.[15] Such purpose of punishment will ordinarily be influential both in the fixing of appropriate sentences for the crimes committed and in fixing a point at which the prisoner is to be eligible for release. Although, as has been pointed out on behalf of the respondent, there were powerful factors to be taken into account on her behalf in mitigation of punishment – particularly her otherwise good character, her pleas of guilty, her physical health and the fact that she had made restitution – I am nevertheless driven to the conclusion, from the nature of the sentences imposed, that her Honour has given far too little weight to the notion that a strong message must be sent to members of the community, who are minded to engage in systematic cheating of the welfare system of the type in which the respondent has engaged, that such conduct will not be tolerated by the courts. This Court has tried to get this message across in many cases of long-running and substantial frauds on the revenue, which have frequently been misdescribed as “victimless crimes”.[16] I do not intend to suggest that in every case where a person has fraudulently obtained benefits for extensive periods and has done so in the absence of pressing need, that the court imposing sentence is inevitably to regard principles of deterrence as of paramount importance in the sense that actual imprisonment must be ordered. What I do suggest, however, is that ordinarily in such cases, that will be so.
[14] [2001] VSCA 93, [12].
[15] R v Vasin & Scherf (1985) 39 SASR 45, 50 (White J); R v Pilarinos [1999] VSCA 142, [12] (Tadgell, JA).
[16] See, for example, R v Nguyen & Phan [1997] 1 VR 386, 389 (Brooking JA); R v Tu Van Tran (1997) 96 A Crim R 53, 57 (Tadgell JA).
His Honour then referred to the South Australian cases of R v Cameron[17] and Kovacevic,[18] and stated:[19]
As I have said, I agree with these remarks. An actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate cheating of the social welfare system because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose for imposing sentence in such cases, namely general deterrence. But that is not to say that there will not be the exceptional case where such factors exist. However, here, the factors do not seem to me to be exceptional.
[17] (1993) 171 LSJS 305, 306-7.
[18] (2000) 76 SASR 404.
[19] [2001] VSCA 93, [13].

On the basis of such statements, counsel submitted that in the present case, the mitigating factors relied upon by the respondent do not outweigh the factor of general deterrence. However, in recognition of factors present here, including a delay of some five and a half years between the detection of the offence in October 2012 and sentencing in the Magistrates Court in May 2018, counsel fairly conceded that in all of the circumstances the recording of a conviction and the imposition of a sentence of imprisonment, with an order releasing the respondent forthwith on a recognizance to be of good behaviour pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), would be an appropriate disposition of the appeal.
The respondent’s submissions on resentencing
Counsel for the respondent placed considerable emphasis on the respondent’s successful participation in the voluntary diversion programme at the Aboriginal Community Court of Elizabeth from 5 June 2017 until 5 March 2018 as a mitigating factor. During this period, she attended at court, at grief and loss counselling, at financial counselling, and at appointments with doctors.
He also relied on the submissions made before the Magistrate including that at the time the respondent’s offending commenced, she provided the only income of the household; her then partner was not working and she had three children in her care. He submitted that her situation has since improved, with her former partner gaining employment and paying child support, and her two eldest children working; she now works 30 hours a week as an Aboriginal community education officer. He submitted that the appropriate disposition would be to record a conviction, and release the respondent forthwith pursuant to s 21E of the Crimes Act 1914 (Cth).
Disposition
I consider that, having regard to all of the facts and circumstances, it is not appropriate to proceed in the manner advanced by the respondent and that the passing of a sentence of imprisonment is the only appropriate outcome. I consider, however, that it is appropriate to proceed by way of ordering that the respondent be released forthwith on a recognizance to be of good behaviour, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
As to the period of imprisonment, I have regard to all of the matters specified in s 16A of the Crimes Act 1914 (Cth) as follows:
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a)     the nature and circumstances of the offence;
(b)     other offences (if any) that are required or permitted to be taken into account;
(c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)     the personal circumstances of any victim of the offence;
(e)     any injury, loss or damage resulting from the offence;
(ea)   if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
(f)    the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)    in any other manner;
…
(g)     if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h)     the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)    the deterrent effect that any sentence or order under consideration may have on the person;
(ja)    the deterrent effect that any sentence or order under consideration may have on other persons;
(k)     the need to ensure that the person is adequately punished for the offence;
(m)    the character, antecedents, age, means and physical or mental condition of the person;
(n)     the prospect of rehabilitation of the person;
(p)     the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
I consider that a starting point of 17 months is appropriate and that, on account of the respondent’s early guilty pleas, this period will be reduced to 12 months. Accordingly, I make the following orders:
1.The appeal is allowed.
2.The orders made by the Magistrate are set aside with the exception that the reparation order remains in force.
3.Convictions are to be recorded for each of the counts and the respondent is sentenced to one term of imprisonment for a period of one year and it is ordered that the respondent be released forthwith on a recognizance to be of good behaviour for a period of one year, with $500 security to be given by the respondent, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).