Payne v The Queen

[2010] WASCA 177

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PAYNE -v- THE QUEEN [2010] WASCA 177

CORAM:   McLURE P

BUSS JA
MAZZA J

HEARD:   21 JULY 2010

DELIVERED          :   9 SEPTEMBER 2010

FILE NO/S:   CACR 20 of 2010

BETWEEN:   EMILY JEAN PAYNE

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 1677 of 2009

Catchwords:

Criminal law - Sentencing - Offender pleaded guilty to one count of defrauding and one count of engaging in conduct with the intention of defrauding Centrelink - Total effective sentence of 18 months' immediate imprisonment - Appeal by offender against sentence - Delay in commencing prosecution - Totality - Turns on own facts

Legislation:

Criminal Code (Cth), s 134.2(1), s 135.1(1)

Result:

Leave to appeal on ground 3 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr J B Prior

Respondent:     Mr D W L Renton & Mr O J Paxman

Solicitors:

Appellant:     Seamus Rafferty

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Cameron (1993) 171 LSJS 305

Ralph v Nawrojee [2003] WASCA 5

Scook v The Queen [2008] WASCA 114

The State of Western Australia v Fleming [2010] WASCA 162

1. McLURE P:  I agree with Buss JA.

2. BUSS JA:  The appellant was charged, by prosecution notice dated 24 August 2009, with:

   (a)one count of dishonestly obtaining a financial advantage from Centrelink by deception, contrary to s 134.2(1) of the Criminal Code (Cth) (Code) (count 1); and

   (b)one count of engaging in conduct with the intention of dishonestly obtaining a gain from Centrelink, contrary to s 135.1(1) of the Code (count 2).

3. On 6 November 2009, the appellant entered fast‑track pleas of guilty in the Perth Magistrates Court.  On 29 January 2010, she entered pleas of guilty in the District Court.

4. Keen DCJ sentenced the appellant, on count 1, to 12 months' imprisonment and, on count 2, to 6 months' imprisonment.  His Honour ordered that the sentence for count 2 be served cumulatively on the sentence for count 1.  The total effective sentence was therefore 18 months' imprisonment.  His Honour ordered that the appellant be released after serving 9 months, upon entering into a recognisance in the amount of $3,000 to be of good behaviour for a further 9 months.

5. The appellant appeals to this court against the sentencing decision. 

The background facts and circumstances

1. The background facts and circumstances were not in dispute.

2. The offences related to the payment by Centrelink to the appellant of a parenting payment (single), and the payment by Centrelink to her of amounts, in the total sum of $50,754.98, to which she was not entitled. 

3. A parenting payment (single) provides income support for single persons who are primary carers of children.  A claimant must have a dependant child under the age of 16 years.  The allowance is means tested.  A recipient must inform Centrelink of any changes in circumstances, including entering into a de facto relationship, within 14 days.

4. As to count 1, on 17 August 2004, the appellant lodged a claim for a parenting payment (single).  Before this date, she had only been in receipt of a family tax benefit.  On 24 August 2004, the appellant also requested, in writing, that Centrelink pay her $19,000 in compensation for 'defective

administration'.  She claimed that after the birth of her son on 1 February 2003, she contacted Centrelink and discussed with an officer her entitlement to a parenting payment (single).  In her letter of 24 August 2004, the appellant asserted that she was incorrectly informed by Centrelink that she was not eligible for this benefit.  In requesting compensation, the appellant represented that she was a single mother who wished to have no contact with the father of her child.

1. After an internal investigation based on the information provided by the appellant, Centrelink decided that she had been incorrectly informed that she was not eligible for a parenting payment (single).  As a result, on 21 December 2004, Centrelink paid $19,000 to the appellant, being the approximate amount of a parenting payment (single) for the period February 2003 to August 2004.

2. Later, Centrelink ascertained that the appellant had failed to inform it that she had been living in a de facto relationship with Christian Payne at 52 Paddington Street, North Perth since April 2002.  If she had not misrepresented her circumstances, Centrelink would not have made the payment of $19,000.

3. As to count 2, on 24 August 2004, the appellant's claim for a parenting payment (single) was granted by Centrelink and backdated to 10 August 2004.  In a claim form submitted to Centrelink, the appellant stated that she was single, had never been married, and had never lived in a de facto relationship.

4. On 7 September 2005, the appellant attended an interview at Centrelink.  She completed a 'parenting payment service update review form' and represented that she was single, had never been married, and had never lived in a de facto relationship.  She also represented that no‑one of the opposite sex lived at her address and that the address and date of birth of the father of her child, Christian Payne, were unknown to her.  When she attended the interview, the appellant was warned by an officer of Centrelink that providing false or misleading information was a serious offence.

5. On 21 September 2005, the appellant participated in another interview at Centrelink.  This interview was concerned with whether the appellant should commence a 'maintenance action' against the father of her child.  During the interview, the appellant declined to take 'maintenance action' on the ground that she and her parents had decided against having any contact with Christian Payne because he had demonstrated an absence of interest in her pregnancy. 

6. Later, investigations by Centrelink revealed that from 16 April 2002, the telephone account for the house at North Perth was connected and registered in the name of Christian Payne.  Also, from 27 April 2002, the electricity account for the premises was registered in his name.  Further, from 29 April 2002, the gas account for the premises was registered in his name.  In addition, the prosecutor informed the sentencing judge that:

   From June 2002, Mr Christian Payne's MasterCard credit card bank statements were addressed to 52 Paddington Street, North Perth.  From April 2004, Mr Payne's Westpac bank account statements were addressed to 52 Paddington Street, North Perth.  From June 2004, the property at 52 Paddington Street, North Perth, was transferred to Mr Christian Alexander Payne for no consideration.

   In March 2005, the offender opened an ING savings account and in April 2006, she renamed the account from 'savings' to 'wedding fund'.  Between 3 April [2007] … and 30 April 2007, [periodic covert] surveillance was conducted at 52 Paddington Street, North Perth, which indicated that both the offender and Christian Payne were residing at that address.  On 21 April 2007, Mr Christian Payne and the offender were united in marriage.

7. Between 23 June 2006 and 2 May 2007, the appellant was employed at Sir Charles Gairdner Hospital.  She earned $34,765.70.  However, she declared only $14,459.69 to Centrelink. 

8. At an interview on 21 May 2007, the appellant completed a written statement admitting that she had been living in a de facto relationship with Christian Payne since 7 April 2002.  She also admitted that when she applied for the parenting payment (single) in August 2004, she knew that she was not entitled to receive the payment.

The grounds of appeal

1. There were originally three grounds of appeal.  However, at the hearing before this court, counsel for the appellant abandoned ground 2. 

2. Ground 1 alleges that the sentencing judge failed to take into account a material consideration, namely, that there had been a substantial delay in commencing criminal proceedings against the appellant.  Ground 3 alleges that the total effective sentence does not bear a proper relationship to the overall criminality involved in the offences, having regard to the circumstances in which the offences were committed and matters personal to the appellant. 

3. On 12 May 2010, Mazza J granted leave to appeal on ground 1 and ordered that the application for leave on ground 3 be referred to the hearing of the appeal.

The merits of ground 1

1. The appellant ceased her offending behaviour sometime in early May 2007. 

2. When the appellant was confronted with evidence of her offending at the interview on 21 May 2007, she was not cautioned.  The interview was not a formal record of interview.  As a result of the admissions made by the appellant, Centrelink carried out further investigations.  These investigations were concluded on 28 February 2008, after the appellant's lawyer contacted Centrelink on 7 February 2008 and said that the appellant did not wish to be formally interviewed. 

3. On 28 February 2008, a brief of evidence was referred to the Commonwealth Director of Public Prosecutions. 

4. Before this court, the Crown accepted that there had been a delay between the brief of evidence being referred to the Commonwealth Director on 28 February 2008 and the signing of the prosecution notice on 28 August 2009, being a period of about 18 months. 

5. The appellant first appeared in the Perth Magistrates Court on 25 September 2009.  As I have mentioned, fast‑track pleas of guilty were entered in that court on 6 November 2009 and pleas of guilty were entered in the District Court on 29 January 2010.

6. The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case.  Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some of the guiding principles to be discerned from the authorities were mentioned in Scook v The Queen [2008] WASCA 114 [16] ‑ [33] (McLure JA), [57] ‑ [65] (Buss JA), [66] (Miller JA). It is unnecessary in this appeal to repeat or elaborate upon the observations in Scook. 

7. At the hearing before the sentencing judge, the appellant was represented by an experienced criminal defence lawyer.  Her counsel did not, however, raise or rely on delay between the completion of the investigations and the commencement of the prosecution as a mitigating factor.  His Honour therefore did not deal with the issue in his sentencing remarks. 

8. I am not satisfied that the delay was caused by dilatory or neglectful conduct by the Crown, the prosecuting authority or any investigatory body.  In any event, even if there was any dilatory or neglectful conduct, it does not, in the circumstances of the present case, require a reduction in the individual sentences or the total effective sentence imposed by his Honour.

9. First, the nature of the offending and its objective seriousness precluded any additional discount on the sentences imposed on the appellant. 

10. Secondly, the delay, while undesirable, was not inordinate or exceptional.   

11. Thirdly, the delay was conducive to the emergence of a significant mitigatory circumstance, namely, the provision of an opportunity for the appellant, which she acted upon, to make restitution of the amount she had defrauded from Centrelink.  The sentencing judge noted this circumstance when he said:

    It is to your credit, and shows some contrition, that you have repaid all of the money, the $50,000-odd, that you took from Centrelink.  I am told by your counsel today that full restitution was made before charges were even laid against you.  That is, as I say, very much to your benefit (AB 61). 

    Plainly, the appellant's restitution resulted in a discount on the sentences that would otherwise have been imposed.

12. Fourthly, there was no evidence before the sentencing judge that the delay had resulted in significant stress for the appellant or left her, to a significant degree, in 'uncertain suspense'.  Further, there was no evidence that during the period of the delay the appellant had adopted a reasonable expectation that she would not be charged or that she had ordered her affairs on the faith of any such expectation.  It is true that there was evidence that the appellant had experienced stress and suffering, but this appears to have been connected with the fact of her conviction and its impact upon her present and future employment, her family and her young child. 

13. Fifthly, although the sentencing judge did not expressly take into account delay (because, no doubt, neither the prosecutor nor the appellant's lawyer mentioned it), he did expressly take into account all relevant factors with which delay was associated. 

14. Ground 1 has not been made out.

The merits of ground 3

1. The totality principle comprises two aspects.  First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).  Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.

2. In the present case, the appellant relies on the first limb of the totality principle.  Her counsel submitted that the total effective sentence, namely 18 months' imprisonment, does not bear a proper relationship to the overall criminality involved in the offences, having regard to the circumstances in which they were committed and matters personal to her. 

3. The maximum penalty for count 1 was 10 years' imprisonment and the maximum penalty for count 2 was 5 years' imprisonment.

4. I have already recounted the circumstances in which the offences were committed. 

5. The appellant's personal circumstances were favourable and there were other mitigating features.  In particular:

   (a)the appellant was aged 23 years when count 1 was committed, and was aged 27 years at the time sentencing;

   (b)pleas of guilty were entered at the earliest opportunity;

   (c)the appellant was extremely remorseful;

   (d)the appellant had no prior criminal record and was otherwise of good character;

   (e)full restitution was made;

   (f)the appellant was working as a scientist in medical research, and the convictions were likely to have a significant impact on her ability to continue to work in that field upon her eventual release;

   (g)the appellant was the mother of a young child; and

   (h)although pre‑sentence reports indicated that the appellant had little insight into her offending behaviour, she was assessed as being unlikely to reoffend and her prospects of rehabilitation were considered to be good.

6. The two offences in question involved two distinct courses of conduct.  It was, on the face of it, open to the sentencing judge to aggregate the individual sentences in order to reflect the appellant's overall criminality.

7. The sentencing judge gave proper consideration to:

   (a)the nature and circumstances of the offences, including the maximum penalties available for each count;

   (b)the injury, loss or damage resulting from the offences, namely, the amount of $50,754.98;

   (c)the degree to which the appellant had shown contrition;

   (d)the appellant's pleas of guilty;

   (e)the degree to which the appellant had cooperated with law enforcement agencies in the investigation of the offences, including her admissions to and cooperation with Centrelink;

   (f)the need to ensure that the appellant was adequately punished;

   (g)the appellant's character, antecedents, age, means and physical or mental condition;

   (h)the appellant's prospects of rehabilitation; and

   (i)the probable effect that the sentences would have on the appellant's family and dependants. 

8. General deterrence is an important sentencing principle in the case of offending against the social security system.  As King CJ observed in R v Cameron (1993) 171 LSJS 305:

   The social security system is the method by which society provides an income to those of its members who, due to misfortune, are not able to provide an income for themselves. 

   Parliament determines the conditions and the level of benefits, and no doubt, in doing so, determines not only what is necessary to meet the needs of welfare beneficiaries but also what society, through the taxpayer, can sustain in that regard.  Abuse of the social security system jeopardises the system itself and therefore the welfare of all those who depend for their livelihood upon the system.  It is the duty of the court to protect the social security system against this type of abuse by making orders which operate as an effective deterrence.  Not only does a fraudulent abuse of the system jeopardise the system itself by placing an undue burden upon the taxpayer, and therefore, on society at large, but it also is a great injustice to all those welfare recipients who abide by the system, conduct themselves honestly and have to subsist on what is by no means a handsome income, namely the benefit prescribed by law as appropriate in the circumstances.  It is a great injustice to those people if others are able with impunity to double their income by a fraud (307). 

   See also Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404.

9. Offending against the social security system is often difficult to detect.  See Ralph v Nawrojee [2003] WASCA 5 [25].

10. In the present case, the sentencing judge said in relation to totality:

    In my view, in all of the circumstances, including your guilty plea, an appropriate term of imprisonment in respect of count 1 would be 12 months.  In respect to count 2, my view is also that the term should be 12 months to reflect the continuing culpability; as I say over a period of two years nine months.

    I now have to consider whether or not to make those sentences cumulative or concurrent.  It seems to me that there are two separate incidents, even though they arise out of one real transaction, in the sense that the offending starts with a fraud which is then continued.  Nevertheless, I am of the view that culmination is required - sorry; cumulation is required.

    I have regard to matters of totality.  And to reflect the total criminality I would, however, reduce the term on count 2 to six months (AB 64). 

11. His Honour's approach in reducing the sentence for count 2 from 12 months to 6 months was an acceptable means by which to give effect

to the totality principle.  An individual sentence may be reduced solely for the purposes of achieving a just outcome on totality.  See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]; The State of Western Australia v Fleming [2010] WASCA 162 [40].

1. The appellant's offending involved multi‑level deception by a very intelligent person over a lengthy period.  There was deception about the status of her relationship with Christian Payne and also about the amount of her income.  The lies she told to obtain significant benefits, to which she knew she had no entitlement, were repeated on numerous occasions over a period of about two years.

2. The necessity for general deterrence and the objective seriousness of the offending justified the total effective sentence of 18 months' imprisonment, despite the appellant's favourable personal circumstances and the other mitigating features.

1. A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error.  In my opinion, the decision of the sentencing judge to impose a total effective sentence of 18 months imprisonment was not plainly unreasonable.  It appropriately marked and reflected the appellant's overall criminality.

2. Ground 3 has not been made out.

Conclusion

1. I would refuse leave to appeal on ground 3.  The appeal is without merit and should be dismissed. 

2. MAZZA J:  I agree with Buss JA.