R v Baker
[2019] ACTSC 316
•30 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Baker |
Citation: | [2019] ACTSC 316 |
Hearing Date: | 4 September and 30 October 2019 |
DecisionDate: | 30 October 2019 |
Before: | Murrell CJ |
Decision: | See [51]–[52]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtain financial advantage by deception – Commonwealth offence – False declarations to Department of Human Services – Disability pension – Where the offender has no criminal record and strong prospects of rehabilitation – Intensive correction order – Reparation order. |
Legislation Cited: | Crimes Act 1914 (Cth) pt IB, ss 4B(2), 16A, 21B Criminal Code 1995 (Cth) s 134.2(1) |
Cases Cited: | Cameron v The Queen [2002] HCA 6; 209 CLR 339 Johnsson v R [2007] NSWCCA 192 The Queen v Pham [2015] HCA 39; 256 CLR 550 |
Parties: | The Queen (Crown) Darlene Baker (Offender) |
Representation: | Counsel H von Forell (Crown) S McLaughlin (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 159 of 2019 |
Murrell CJ:
The offender is to be sentenced for the offence that, between 31 July 2013 and 2 May 2018, she obtained a financial advantage by deception from the Department of Human Services, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).
The maximum penalty for this offence is 10 years’ imprisonment. Pursuant to s 4B(2) of the Crimes Act 1914 (Cth) (Crimes Act), the Court may impose a pecuniary penalty of 600 penalty units instead of, or in addition to, imprisonment.
Facts
From 2001, the offender began to receive the Disability Support Pension (the benefit) from the Commonwealth Department of Human Services (the Department).
She received the benefit for a back condition resulting from a serious motor vehicle accident that had occurred in 1996. The benefit was received from 2001 to about 2008. She ceased receiving the benefit for about four years before it was reinstated from approximately 2012.
The rate of benefit to which a recipient is entitled is affected by the recipient’s employment income. Ordinarily, recipients must report their employment income every fortnight. In addition, they have an ongoing legal obligation to report any change of circumstance that causes a variation in their income.
Between 31 July 2013 and 2 May 2018, the offender failed to correctly declare the amount of her employment income and made various false declarations to the Department. During this period, she earned a total gross income of $235,372.03 from employment with three employers. However, she declared only $59,061.01 to the Department.
Her employment was almost continuous. Between 5 July and 8 December 2013, she was employed by Baby Bunting as a casual sales assistant. Between 9 December 2013 and approximately June 2015, she was employed by Just Better Care as a casual community support worker. From late 2015 until May 2018, she was employed by Goodwin Aged Care Services as a part-time carer.
Between 29 July 2013 and 22 April 2015, the offender reported her income to the Department on the usual fortnightly basis. However, when doing so in online declarations, she made 43 false under-declarations and two false declarations that she had earned no income in the relevant fortnight.
As a consequence of her false statements about receiving no income, the requirement for fortnightly reporting was removed by the Department, and the offender continued to receive benefits.
On 6 July 2016, the Department suspended the offender’s benefits and raised an administrative debt against her.
On 12 July 2016, the offender contacted the Department by telephone, stating that she had commenced casual employment with Goodwin Aged Care Services on approximately 16 November 2015, she thought that she had been correctly reporting her income from that employer and she was “not sure why it was not showing up”. In the telephone call, the offender confirmed that she understood her notification obligations, the difference between gross and net income, how to declare her income in the correct fortnight, and the requirement to report fortnightly in the correct fortnight.
On 25 July 2016, the offender incorrectly declared that she had continuously received $755.25 in income per fortnight since 17 November 2015. She stated that she thought that she had added Goodwin Aged Care Services “with her app” but that “her app never works properly”. She was reminded of her ongoing legal obligation to report any change of circumstance.
As a result of her false reports, the offender obtained social security payments to which she was only partially entitled.
The Department detected the overpayment as a result of an internal review and data-matching within the Australian Taxation Office,
On 12 April 2018, the Department notified the offender of the overpayment and required her to provide information about her employment by 3 May 2018.
The offender did not respond to the notice, and her benefit was suspended on 3 May 2018.
As stated above, during the period of offending, the offender earned $235,372.03 gross income from employment, but declared only $59,061.01. She received a total of $108,814.85 in social security benefits, when she was eligible to receive only $25,093.21. In other words, she was overpaid $83,721.64.
On 28 May 2018, the Department again informed the offender of her overpayments. When asked why she had not declared her employment income correctly, the offender stated that she had not known that she had to report fortnightly and she thought that she had advised the Department of her income.
Objective seriousness
The considerations that inform the objective seriousness of this offence are:
(a) The length of the ongoing course of offending conduct—almost 5 years.
(b) The number of false statements made to the Department—around 50 false statements.
(c) The total sum of the overpayment—$83,721.64; more than three times the amount to which the offender was actually entitled.
(d) Although the offender was clearly put on notice in mid-2016 that she had been overpaid, she persisted in the deception. By indicating that she was receiving a regular income, she was placed on fortnightly “auto reporting”.
(e) The motivation for the offending conduct—in this case, her motive was to meet daily financial needs, including payment of rent. For most of the period, the offender was living alone and paying a significant amount of rent. At one stage, she financially supported one of her children and three grand-children. There was no suggestion that she spent money on a lavish lifestyle.
(f) The degree of planning—the offence was unsophisticated; it did not involve features such as the receipt of multiple benefits or the use of false identities or false bank accounts.
Subjective circumstances
The offender is 59 years of age. At the time of the offence, she was between 53 and 57 years of age.
She has no relevant criminal history.
She was born in rural NSW. She is one of five children. She had a supportive upbringing and enjoys good relationships with her siblings.
Her father died in a motor vehicle accident when she was 15 years old and her mother died more recently. Both her mother and grandmother suffered from a genetic condition which led to the development of motor neuron disease.
The offender is single. In earlier times, she was married (or lived in a de facto relationship) with the father of her four children for a significant period of time. During that relationship, she was subjected to physical and emotional domestic violence. She separated from her partner in about 1993. Thereafter, raised her four children as a single mother.
She enjoys good relationships with all her children, three of whom are present to support her in Court. For the past year, the offender has been living with the fourth child and with his three children aged between seven and 10 years. He is the sole parental carer for those children as they have been removed from the care of their mother in the context of alleged neglect by her.
The offender has assumed a strong maternal role in relation to her grandchildren. She assists in their daily care by, for example taking the children to school and to other appointments. She provides a female role model. The offender intends to reside with her son and three grandchildren until she can afford her own rental accommodation.
In relation to her former long-term partner, in about 2015 he was diagnosed with motor neuron disease. Although the couple had been separated for decades, the offender assumed care responsibilities for him in the last 13 months of his life, including by feeding him.
As the offender's mother and grandmother suffered from motor neuron disease and she was aware of the possibility that she had a genetic predisposition to the illness, in 2015 the offender undertook genetic testing. She discovered that she has a genetic condition that places her at increased risk of motor neuron disease and a related condition of frontotemporal dementia. The report provided to the Court identifies the risk merely as “increased risk” but the offender understands that there is a virtual certainty that, at some stage, the condition will develop. She expects that to occur by the time that she attains 70 years of age and, thereafter, she expects that her life expectancy will be about two years. She is required to undertake check-ups every six months to monitor any progress of the condition.
As mentioned, the offender also suffers from a back condition resulting from a serious car accident in 1996, for which she continues to take pain relief medication. More recently, she has developed depression and now receives antidepressant medication.
The offender completed Year 9 at school. She is trained as an aged care worker and has worked in that area for a number of years. She currently works two night shifts a week and is actively seeking more shifts. She receives Centrelink Newstart Allowance. Apart from her very significant debt to the Department, she has no other debts.
When spoken to for the purposes of the pre-sentence report, the offender indicated that she had been unaware of income reporting obligations. That proposition is difficult to accept considering the information that was provided to the offender. She gave the authors of the pre-sentence report little information in relation to her motives and she did not appear to have much insight into the seriousness of her conduct.
Nevertheless, she was assessed to be at low risk of general re-offending. She has stable accommodation and enjoys supportive relationships. Her criminogenic risks relate to her health and poor decision-making in the past.
Sentencing considerations
In sentencing the offender, the Court must do so in accordance with pt IB of the Crimes Act. In addition to any other relevant factors, the Court must take into account the matters set out in s 16A that are relevant and known to the Court.
Under s 17A of the Crimes Act, a sentence of imprisonment may be imposed only if no other sentence is appropriate in all the circumstances.
When sentencing an offender for social security fraud, a key sentencing consideration is general deterrence. Offences of this kind are easy to commit (as demonstrated by the circumstances of this case). The Department – and, indeed, the general public – depends upon recipients of benefits being trustworthy and honest in their dealings with the Commonwealth.
Dishonesty undermines the integrity of the social security system, leading to a loss of confidence in the integrity and worth of the system: R v Hurst; Ex parte Commonwealth DPP [2005] QCA 25 per McMurdo P at 7. Several appellate courts have indicated that, in the case of a deliberate and sustained fraud, a sentence of imprisonment is ordinarily required because it is unlikely that mitigating factors will outweigh the importance of general deterrence.
Having regard to the persistence of the offender’s misconduct in this case, there may also be a need for personal deterrence.
In the case of persistent offending, good character may be of limited assistance to an offender: R v Ruggiero (1998) 104 A Crim R 358 at 364.
The offender entered an early plea of guilty in the Magistrates Court, indicating contrition. For Commonwealth offences, an offender who pleads guilty is entitled to a discount on the sentence if the plea is evidence of their remorse, acceptance of responsibility, and willingness to facilitate justice: Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [11]–[15]. In this case, the Crown accepts that the offender’s early plea of guilty evidences an acceptance of responsibility and willingness to facilitate justice, and that the offender is entitled to a reduction in the sentence that would otherwise have been imposed.
The offender has repaid $6,446.65 to the Department; the Department has withheld part of her fortnightly benefits. The repayment has not occurred through any significant sacrifice by the offender. Most of the overpayment remains outstanding.
When sentencing a federal offender, the Court must have regard to what has been done in comparable cases throughout the Commonwealth, not just in this jurisdiction: The Queen v Pham [2015] HCA 39; 256 CLR 550 at [24].
The Crown referred the Court to three comparable cases, while noting the limitations relating to the use of such cases. The cases were R v Newton [2010] QCA 101; 199 A Crim R 288, Johnsson v R [2007] NSWCCA 192, and Paynev The Queen [2010] WASCA 177. The defence referred to another comparable case, Swobodav Cobbo [2017] QDC 30. In those cases, the offenders were sentenced to terms of imprisonment of between about 18 months and three years, but in several of the cases they were not required to serve any significant part of the sentence by way of fulltime imprisonment.
The Commonwealth Sentencing Database shows that, in the period 2014 to 2018, 70 per cent of offenders received a sentence of imprisonment, but where there was only one count, a guilty plea, and a female offender who was aged more than 50 years, only one of five offenders received a sentence of imprisonment.
While I am well aware of the many limitations of relying upon sentencing statistics, in this case, the sentencing statistics are consistent with the comparable cases to which I was referred. The statistics demonstrate that the sentence is often in the range of two to three years and that offenders are not necessarily required to serve any period in fulltime imprisonment, or at least are not required to serve any significant period in fulltime imprisonment.
The Crown submitted that, having regard to the period of the offending, the sum involved and the active deception that was involved, the only appropriate sentence was an immediate term of imprisonment.
I accept that the offence was of substantial objective seriousness, although it was also quite unsophisticated.
I agree that a sentence involving a component of fulltime imprisonment is an appropriate sentence. The real issue is whether it is the only appropriate sentence or whether a slightly less punitive sentence comprising an intensive corrections order combined with a community service work obligation would be adequate to satisfy sentencing purposes such as punishment, general deterrence, personal deterrence and harm to the community.
Sentence
On 4 September 2019, I adjourned proceedings to enable the offender to be assessed for an intensive correction order, including an assessment of the offender’s suitability to undertake community service work.
The offender was assessed as suitable for an intensive correction order.
The intensive correction order assessment report suggested that, because of the favourable factors associated with the offender's lifestyle, she would not benefit from a requirement that she serve her sentence by way of intensive supervision and, inferentially, that the resources of Community Corrections could be better deployed.
It was submitted that I should consider imposing a suspended sentence.
I consider that the imposition of an order that the sentence be served by way of suspended sentence would be inadequate to address sentencing purposes such as general deterrence and personal deterrence, particularly given the objective seriousness of the offence.
The offender is convicted.
(a) I sentence her to two years’ imprisonment (reduced from two years and eight months’ imprisonment, i.e. by 25 per cent).
(b) I order that the sentence be served by intensive correction in the community.
(c) The intensive correction order includes the additional condition that the offender undertake 250 hours of community service work within the two-year period of the sentence
Additionally, I make a reparation order pursuant to s 21B of the Crimes Act that the sum of $77,382.00 be paid to the Department.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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