R v Buggy
[2006] ACTCA 20
•8 November 2006
REGINA v TRACEY LEE BUGGY [2006] ACTCA 20 (8 November 2006)
CRIMINAL LAW – Appeals – Crown appeal against sentence – social security fraud – whether sentence should be fully suspended – psychiatric report before sentencing judge – psychiatrist not called for cross-examination - Crown challenge to psychiatrist’s opinion.
Magistrates Court Act 1930, s 90A
Supreme Court Act, s 37E
R v House (1936) 55 CLR 499 cited
Griffiths v The Queen (1977) 137 CLR 293 cited
Everett v The Queen (1994) 181 CLR 295 cited
Lowndes v The Queen (1999) 195 CLR 665 cited
R v Brewer [2004] ACTCA 10
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 13-2006
No. SC 255 of 2005
Judges: Higgins CJ, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 8 November 2006
IN THE SUPREME COURT OF THE ) No. ACTCA 13-2006
) No. SC 255 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:REGINA
Appellant
AND:TRACEY LEE BUGGY
Respondent
ORDER
Judges: Higgins CJ, Connolly and Lander JJ
Date: 8 November 2006
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 13-2006
) No. SC 255 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:REGINA
Appellant
AND:TRACEY LEE BUGGY
Respondent
Judges: Higgins CJ, Connolly and Lander JJ
Date: 8 November 2006
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal by the Crown against a sentence imposed by a judge of this Court on 28 March 2006.
The respondent was charged with three counts of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage by deception. She pleaded guilty to those charges in the Magistrates Court and was committed to the Supreme Court of the Australian Capital Territory (ACT) to be dealt with as provided by s 90A of the Magistrates Court Act 1930.
The respondent was sentenced to six months imprisonment in relation to the first charge of defrauding the Commonwealth. In relation to the second and third charges of defrauding the Commonwealth she was sentenced to two years imprisonment on each concurrent with each other but which sentence was cumulative upon the first charge of defrauding the Commonwealth. On the charge of dishonestly obtaining a financial advantage by deception she was sentenced to two years imprisonment also cumulative upon the sentence on the first charge but, again, concurrent with the sentences on the second and third charges.
The effect of those sentences was a head sentence of two years and six months. The respondent was ordered to be released forthwith upon her giving security by recognisance in the sum of $3,000 upon the following conditions:
(1) be of good behaviour for a period of three years;
(2)be subject to the supervision of a probation officer appointed by the ACT Director of Adult Corrective Services; and
(3)obey all reasonable directions of that officer, including participating in and completing counselling and therapy as directed and to undertake programs as directed.
At the time that the offences were committed each offence carried a penalty of up to ten years imprisonment. The three counts of defrauding the Commonwealth also included provision for a fine of $110,000 and for the charge of obtaining a financial advantage by deception, a fine of $66,000 as well as imprisonment.
The appellant does not challenge the head sentence imposed by his Honour. The appeal is directed solely to his Honour’s decision to fully suspend the sentence. It is apparent that this was also the real issue in the submissions on sentencing below.
The respondent was born on 29 August 1969. She was raised in Leeton in country New South Wales. She was educated to Year 10 and left school when she was 16 years of age. After leaving school, she enrolled in a secretarial course at the local TAFE and completed a 12 month course, and received her qualifications. After completing that further study she began working in the banking industry in which she remained for ten years, only leaving when she moved interstate.
Whilst she was a child she was the victim of a sexual assault. She did not complain of that assault until her early 20s. Her complaint caused a rift between members of her family.
The respondent first met Mr John Buggy in September 1993 and formed a relationship with him which lasted for nine months. After they parted the respondent married Ashley Gibbons whom she divorced in 1995. After her divorce she formed a relationship with Saverio Andreuccio (Sam) who died before the birth of their son, Joshua Young, on 17 September 1997. Mr Andreuccio committed suicide.
Joshua was born with cerebral palsy. He suffers from right side hemiplegia which has required corrective surgery.
On 29 September 1997 the respondent lodged a claim for a sole parent pension, which was granted, effective from 18 September 1997.
Shortly after the birth of Joshua, the respondent’s present husband, Mr Buggy, contacted the respondent and, by Christmas 1997, they had resumed their relationship. The respondent and Joshua began living with the respondent’s husband on 18 February 1998.
In the meantime, on 30 December 1997, the respondent registered the business, AAA Tidy Bags.
On 4 May 1998 the respondent and her husband applied to Australian Home Loans Ltd for a home loan to purchase a property at 12 Halfrey Circuit, Wanniassa. In that loan application they each asserted they had a seven month old dependant and declared the value of their assets at $196,000. The loan was approved and settlement occurred on 19 June 1998.
The respondent’s parenting payment single pension ceased on 12 June 1998 when she failed to lodge a review form. At no time prior to the cessation of those payments did the respondent advise Centrelink that she had been living with her husband or that she was self-employed.
The respondent and her husband became engaged in July 1998 and were married on 17 October 1998.
On 3 May 1999 the respondent lodged a claim for a single parenting payment asserting that she and her husband had separated on 2 February 1999. She gave her residential address as Sharps Road, Wunghnu, Victoria.
The respondent received payment of that benefit until 5 October 2004. By at least September 1999 the respondent and her husband resumed cohabitation but at no time did the respondent advise Centrelink of this development.
The evidence disclosed that the respondent and her husband identified themselves as being married and living together at 12 Halfrey Circuit, Wanniassa, ACT over the period between September 1999 and 2004.
During that period the respondent gave birth to a child, Kyle John Buggy who was born on 11 July 2000.
In June 2004 the respondent’s husband applied to this Court for an adoption order for Joshua. In support of that application the respondent and her husband swore a joint affidavit asserting they resided together at 12 Halfrey Circuit, Wanniassa and that they had commenced living together in December 1997.
The respondent’s husband also asserted that he had been self-employed with the business, AAA Tidy Bags, for the previous six years.
In June 2004, when the respondent and her husband refinanced their mortgage for home renovations, they stated on that finance application that they were employed with AAA Tidy Bags and had been since 1997, and had an annual gross income of $125,000 each.
During that same period the respondent contacted Centrelink on 21 August 2001 advising Centrelink of a change of address, providing new rent details and that she was paying rent to a Mr John Magan of 12 Marfree Circuit, Wanniassa, ACT.
In July 2003 she contacted Centrelink requesting correspondence be sent to PO Box W43, Curtin ACT.
As a result of her failure to advise Centrelink of her actual circumstances, the respondent was overpaid $56,684.72 in sole parent pension and parenting payment single, and $16,323.90 in family payments. The total overpayment was $73,008.62.
When her circumstances were discovered, Centrelink offered the respondent the opportunity to participate in a tape record of interview. In that interview, which was had on 12 November 2004, she said that she and Mr Buggy were ‘on and off’ and that she had no income. She said she did not make the claim on Centrelink through greed but from a necessity to live as her business was running at a loss.
On 24 November 2005 the respondent repaid the debt due to Centrelink in one lump sum to Centrelink’s Debt Recovery Unit.
The sentencing judge said at [5] of his reasons for sentence:
As I have said, these are serious offences. They involve an abuse of the social security system which is designed to ensure that benefits are given promptly to persons to enable them to avoid hardship. It relies upon an element of trust on the part of applicants to make full disclosure of their circumstances. An abuse of such a trust is a burden on all taxpayers and calls for heavy penalties to be imposed not the least to deter others who might be tempted to similarly abuse the privilege. Generally, only a sentence of imprisonment is appropriate in such cases.
He took into account the respondent’s age; that she had no prior convictions; that she had made full restitution; and had pleaded guilty at the first available opportunity. He took into account her remorse and contrition, which he accepted was genuine.
The sentencing judge, also took into account a psychiatric report dated 1 February 2006 prepared by Dr William Knox which was tendered on behalf of the respondent.
It was Dr Knox’s opinion that the respondent suffered from a post-traumatic stress disorder which had contributed to and was interwoven with a borderline personality disorder. In Dr Knox’s opinion, two stressful events had contributed to her illness, they being the sexual abuse she experienced as a child and the death of Joshua’s father.
Dr Knox said in his report:
In summary I believe that your client acted in defrauding Centrelink with very minimal capacity to behave other than she did. She was driven to support her fragile identity and self-esteem by avoiding further dependence on her current partner John Buggy, and not shaming herself in the eyes of her parents and others. As Ms Buggy explained to me, and as was exemplified by her manner and dress, she goes to great lengths every day to present an acceptable façade to the world, covering her very empty, distressed identity.
While Ms Buggy did know, and pay attention to her wrong doing from time to time, the greater part of the time Ms Buggy was preoccupied with day to day survival in the face of her high level of dysfunctional arousal. There is ample evidence of Ms Buggy behaving in such a manner in respect of many other instances in her life which have bought about deleterious consequences. Her activities with Centrelink are not isolated.
Ms Buggy’s presentation is supportive of the history given by her. She is an anxious, disorganised, impulsive person. She presents herself attractively. She fears rejection and ingratiates herself.
My intentions in this report have been to explain to the Court Ms Buggy’s psychological state so that the court can more fully appreciate the deficient level, as I judge it, of “intent” on her part on account of her severely damaged psychological identity and chronic psychiatric disorder.
There is ample supportive evidence indicating that Ms Buggy will experience very high levels of stress if required to go to prison, and I am of the view that for her to need to serve a regular full-time prison sentence poses a very high level of suicide risk. Weekend detention, will pose major problems but be less catastrophic from Ms Buggy’s perspective. Community service activities other than at weekends would seem difficult given Ms Buggy’s need to be available for her children, and participate in the family business.
The sentencing judge said at [13]:
This circumstance places her in a quite different situation to others who have undertaken a similar course of offending. It certainly removes her from the characterisation that prosecution sought to place her in, that of committing the offences out of greed, not need. Of course that characterisation does not necessarily provide a justification to avoid a custodial sentence. As the NSW Court of Criminal Appeal observed in R v Purdon (unreported), NSWCCA, 27 March 1997, at p 6, “If the fraud is based on greed, the custodial sentence will be longer”. But, putting that aspect to one side, in this case, the additional factors concerning Ms Buggy’s mental health means that I should give weight to the effect of Ms Buggy’s psychological state on the offences with which she is charged which Dr Knox describes as “the deficient level [as he judges it] of “intent” on her part on account of her severely damaged psychological identity and chronic psychiatric disorder”. I regard this as a markedly different circumstance in offending of this nature and an important factor in my consideration.
The sentencing judge considered the effect upon the respondent and the effect upon her children, particularly Joshua should she be sentenced to an immediate term of imprisonment.
He said at [18]-[19]:
In this case, I have taken a particular view as to the criminality involved in this matter in light of Ms Buggy’s mental disorder and that, taken with all the other matters, causes me not to impose an immediate sentence of imprisonment.
This is a case where, if the sentence to be imposed was to be imprisonment for two years or less, I would have considered that periodic detention may have been an appropriate option. That would have required careful evaluation in light of Dr Knox’s view that a need for Ms Buggy to serve a full-time prison sentence posed a very high level of risk to her and that weekend detention would pose major problems but be less catastrophic from Ms Buggy’s perspective. However, I am of the view that in this case a sentence of imprisonment exceeding two years is appropriate. In that circumstance, the option of periodic detention is just not available. Had it been, the risks referred to by Dr Knox would almost certainly mitigate against it being appropriate. In any event, in circumstances where I consider that a full-time custodial sentence to not be appropriate, I do not propose to impose such a sentence simply because what may have been an appropriate alternative sentence is not available.
The Crown, which is entitled to appeal as of right (s 37E Supreme Court Act), asserts in its notice of appeal:
(a) the sentence imposed was manifestly inadequate;
(b)His Honour erred in totally suspending the sentence, given the overall criminality and the nature and seriousness of the offending;
(c)His Honour erred in giving undue weight to the report of Dr Knox;
(d)His Honour erred in giving undue weight to the mental disorder of the Respondent;
(e)His Honour erred in giving undue weight to the factor of rehabilitation, particularly in light of the low risk of recidivism.
The Crown submitted that it did not require leave, nor did it need to demonstrate error before this Court can hear the appeal. We accept the first proposition in that submission that leave is not required but not the second. An appeal lies to correct error. An appeal lies against the exercise by a sentencing judge of that judge’s sentencing discretion only if the appellant can satisfy the Court that the sentencing discretion has miscarried for one of the reasons indicated in R v House (1936) 55 CLR 499 at 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The Crown stands in a different position to a person under sentence in a sentencing appeal. An appeal by the Crown against sentence ought to be a rare event and only brought to establish a principle or to allow the intermediate court to which the appeal is brought to lay down sentencing principles: Griffiths v The Queen (1977) 137 CLR 293. In Everett v The Queen (1994) 181 CLR 295, Brennan, Deane, Dawson and Gaudron JJ said at 299-300:
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”. (Footnotes omitted.)
One of the tasks of an intermediate Court of Criminal Appeal is to ensure that there is, as much as possible, uniformity of sentencing so as to maintain the public’s confidence in the administration of justice, in particular, by deterring those who might otherwise commit crimes. As part of that task the Court must, when necessary, correct those sentences which would, if allowed to stand, shock the public conscience.
In our opinion, it would be appropriate to approach this appeal upon the basis that the Crown must establish that there is some point of principle which needs be explored by this Court which would make it appropriate for this Court to order that the respondent serve at least some part of the sentence of imprisonment which the sentencing judge has ordered be suspended.
If the Crown can establish that to order the suspension of a term of imprisonment for offences of this kind does of itself demonstrate error upon the part of the sentencing judge, then the test referred to in Everett and Griffiths would be satisfied.
In this case, the sentencing judge has proceeded in accordance with authority. He has had regard to the offending which he described as ‘serious’. He has concluded that the offending required a sentence of imprisonment to be imposed. He has then applied his mind to the question of suspension and concluded that, because of circumstances personal to the respondent, the sentence ought to be suspended.
The Crown does not complain of the sentence of imprisonment which was imposed but does complain of the order for suspension. It is the Crown’s contention that the respondent should have been called upon to serve an actual period of imprisonment.
Essentially, the Crown contends that the sentencing judge placed too much reliance upon the report of Dr Knox which, it contended, did not provide sufficient reasons for suspending the sentence of imprisonment.
It is not for this Court to substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion different to that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671-672. This Court must be satisfied that an error of principle has been shown such, as we have already said, that the sentencing discretion miscarried.
It is clear from the objective facts that the respondent set about a course of conduct to deliberately deceive the Commonwealth to obtain benefits to which she was not entitled. She did so in circumstances where she was not only married and enjoying the support of her husband but also receiving a substantial income. These were very serious offences.
Her psychiatric illness was a relevant factor which had to be taken into account in determining both the head sentence and the question of suspension. Her previous good record, her contrition and remorse, her early plea, the making of restitution and her prospects of rehabilitation were also relevant matters both for the head sentence and the question of suspension. It seems to us that it was within his Honour’s discretion to take the psychiatric material into account and fully suspend the sentence in the circumstances of this case. His Honour was clearly mindful of what was said by this Court in R v Brewer [2004] ACTCA 10.
In the end it was, as the appellant has contended, Dr Knox’s opinion which influenced the sentencing judge to suspend the sentence of imprisonment.
Dr Knox’s report was served by the respondent on the appellant a week before the sentencing hearing. This is not required by the Rules, but is obviously sound practice. It was tendered without objection. Counsel for the appellant indicated in written submissions that Dr Knox’s conclusions would be challenged, but did not require Dr Knox for cross-examination.
In our view, this placed his Honour in a most difficult position. It is clear from the transcript that his Honour indicated to counsel for the Crown that, if he wished to challenge the report of Dr Knox, or any of his opinions, the proper course would be to require him for cross-examination. Counsel for the respondent indicated that Dr Knox could be made available, but the Crown did not request that he be called. Having made this forensic decision, it seems to us that it is inappropriate on appeal for the Crown now to challenge Dr Knox’s report. It was admitted without objection, and he was not required for cross-examination. His Honour did not fall into appellable error in relying on such evidence.
Where it is apparent, as it was here, that a person will rely on a psychiatric report to seek to persuade a sentencing judge to fully or substantially suspend a sentence of imprisonment, the Crown, if it is going to challenge that report, should require that the expert be called and test the expert’s conclusions in the ordinary way by cross-examination. In this case, the Crown consciously declined to require that Dr Knox be made available for cross-examination. It cannot now complain that the sentencing judge relied upon it without qualification.
The appeal is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.
Associate:
Date: 8 November 2006
Counsel for the Appellant: Mr J White
Solicitor for the Appellant: Commonwealth Director of Public Prosecutions
Counsel for the Respondent: Mr FJ Purnell SC
Solicitor for the Respondent: Porters Lawyers
Date of hearing: 1 November 2006
Date of judgment: 8 November 2006
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