R v Higgins

[2002] NSWCCA 407

Reported Decision: (2002) 133 A Crim R 385

New South Wales

Court of Criminal Appeal

CITATION:	R v Higgins [2002] NSWCCA 407
FILE NUMBER(S):	CCA 60860/01
HEARING DATE(S):	02/10/2002
JUDGMENT DATE:	2 October 2002
PARTIES :	Regina v Paul Andrew Higgins
JUDGMENT OF:	Wood CJ at CL at 1, 36, 38; Howie J at 2; Smart AJ at 37

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0723
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	M. Cinque - Respondent G. Jauncey - Applicant
SOLICITORS:	Commonwealth Director of Public Prosecutions - Respondent Peter Murphy, Solicitor - Applicant
CATCHWORDS:	Criminal Law and Procedure - Sentence - Applicannt suffering HIV/AIDS - Effect of ill health on sentence - Failure to apply Pearce v The Queen
LEGISLATION CITED:	Crimes Act 1914 (Cth) - ss 16A, 16G, 17A, 29B Justice Act 1902 - s 51A
CASES CITED:	R v El Karhani (1990) 21 NSWLR 370 Sweet (2001) 125 A Crim R 341 Pearce v The Queen (1998) 194 CLR 610 R v L (NSWCCA, 17 June 1996, unreported)
DECISION:	See paragraph 35.

60860/01

WOOD CJ at CL
HOWIE J
SMART AJ

WEDNESDAY 2 OCTOBER 2002

R v Paul Andrew HIGGINS

Judgment

1 WOOD CJ at CL: I will ask Howie J to give the first judgment.

2 HOWIE J: The applicant pleaded guilty before a magistrate to three charges of imposing upon the Commonwealth contrary to s 29B of the Crimes Act 1914 (Cth). He was committed for sentence to the District Court under the provisions of s 51A of the Justices Act (1902) and adhered to his pleas in the District Court. The maximum penalty of imprisonment that can be imposed for each offence is 2 years.

3 On 7 December 2001 the applicant was sentenced by his Honour Judge Freeman in respect of each charge to imprisonment for 18 months to date from the date of sentence and to expire on 6 June 2003. His Honour ordered that the applicant be released after serving 6 months upon the applicant entering into a recognizance to be of good behaviour for 12 months. His Honour also made a reparation order in the sum of $52,599.26. The applicant seeks leave to appeal against the severity of that sentence.

4 Each of the offences concerned the applicant obtaining benefits to which he was not entitled from what was then the Department of Social Security. They were committed over a period from 29 March 1993 to 9 July 1998 and involved the applicant using an assumed name as well as his own. From 3 November 1983 for a number of periods of time the applicant was in receipt of benefits of various types under his own name. However, from 16 March 1993 to 20 December of that year he was also in receipt of a Job Search Allowance under the name of Paul Turner. From 21 December 1993 until 9 February 1998 he was in receipt of a Newstart Allowance also in the name of Paul Turner.

5 The benefits were paid to the applicant as a result of numerous false applications made by him and accompanied by supporting documentation proving this false identity. Included in this material was a statement in which he said he was living with Paul Higgins and paying him for board and lodgings. Each fortnight between March 1993 and February 1994 application forms for the payment of an allowance were sent to the applicant in the name of Paul Turner and he completed and returned them. The applicant on occasions supplied medical certificates under this name to prove that he was unfit for work.

6 On 23 February 1998 the applicant failed to lodge a fortnightly application form in the name of Paul Turner and no more claims or payments were made under that name from that date. However, this failure was coincidental with the fact that an ongoing investigation of the applicant’s dual claims was about to come to fruition.

7 As well as making fraudulent claims under the name of Paul Turner the applicant was receiving rent assistance in his own name from 2 February 1995 even though he was not entitled to that benefit because from that date he was living in a property owned by the Department of Housing. The applicant had failed to inform the relevant agency that he had moved into that accommodation, as he was obliged to do. This activity was detected and in March 1999 a debt was raised against the applicant to recover the rent assistance payments wrongfully received by the applicant.

8 As a result of his fraudulent activity the applicant obtained three different types of benefits, each one giving rise to a separate criminal charge. The amounts obtained were as follows: Jobsearch Allowance - $5,505.32; Newstart Allowance - $40,749.44; Rent Assistance - $6,525.40. As at 19 November 2001 $1,180.90 had been recovered by withholding benefits from the applicant.

9 In respect of the criminality reflected in the offences committed by the applicant, the learned sentencing judge said:

These impositions went on in those two separate guises over a long period, five years, and the sum involved is a not inconsiderable one. The crimes are ones which have been roundly condemned at appellate level on a number of occasions, touching as they do the whole structure of the revenue and the support network which is provided by the Government to those in need, and raising the risk that genuine claimants will be subjected to much greater difficulty in accessing benefits, and the burden borne by the ordinary taxpayer will be artificially inflated by depredations such as those in which this prisoner engaged.

This court is urged by authority to treat offences such as this with significant seriousness. Indeed, it is only in exceptional circumstances that a non-custodial alternative should be considered or imposed.

10 The applicant was born in 1967. He has a criminal record that dates from 1987 involving drug and dishonesty offences. Of most relevance is the fact that in 1988 he received a gaol sentence for break, enter and stealing and receiving offences. However, since that time there has been only three offences recorded against him, two of those being stealing offences one in 1989 and the other in 1998. He was fined for each of those matters.

11 A pre-sentence report before the sentencing judge indicated that the applicant came from a stable and reasonably happy home environment, his earlier criminal activity being blamed on associates. He resides with a partner with whom he has been in a steady relationship for the last 11 years. His work record was described as unstable and since 1988 the applicant has been in receipt of sickness or disability benefits. The applicant has been using methadone since 1988 because of his earlier addiction to heroin.

12 The most significant matter in the applicant’s subjective case was that he contacted the HIV virus while serving the prison sentence in 1988. There was before the sentencing judge a number of reports dealing with the state of the applicant’s health and the possible effects of imprisonment upon him. His treating doctor indicated that there were few available options for treating the applicant but there was at the time of sentence consideration being given to a new treatment regime for him. He was described as having an 86 per cent risk of his illness progressing over the next three years. The doctor indicated the difficulties of effectively treating the applicant if he were serving a prison sentence.

13 A report from a psychiatrist who had been treating the applicant for a period after his arrest indicated that the applicant had committed the offences because of depression resulting from his medical condition and fear of what he believed was his imminent death. The applicant said that he had used the money he obtained for heroin and in gambling to relieve his anxiety and depression.

14 Since his arrest the applicant had been attending the Community HIV/AIDS Team at the Redfern Community Health Centre where he has received assistance to adjust to the long-term consequences of his illness. He has also been involved in a support group providing assistance to persons suffering from HIV/AIDS.

15 The Probation and Parole Officer who prepared the pre-sentence report found the applicant suitable for both periodic detention and community service as an alternative to a custodial sentence.

16 It is clear that the state of the applicant’s health was relied upon by Mr Leask, who appeared for the applicant both before Judge Freeman and before this Court, as amounting to an exceptional circumstance that would have authorised the imposition of other than a custodial sentence. In respect of that submission his Honour stated:

I note that the prisoner is already in a parlous state concerning his prognosis, and indeed the treatment apparently offered by Dr McMurchie since 1999 has not produced any major impact upon his condition or prognosis. I am prepared to infer that the prisoner's recent history of anxiety, panic attacks and the probability that he has in the past suffered from depression, will render him more likely to become depressed in jail. I accept, therefore, that this may have a deleterious effect on his physical condition.

This is certainly a considerable mitigating factor. It does not, in my view however, negate the other clear necessity for these offences to be met with a sentence of full-time custody. It significantly reduces the term which I would otherwise adjudge appropriate.

17 After his Honour indicated that he had considered the matters set out in s 16A of the Crimes Act and satisfied himself under s 17A of that Act that no sentence other than full-time custody was appropriate, he stated:

I have considered all of the elements under s 16A, the prisoner's health foremost amongst them, his contrition, cooperation, the effect upon his family and all of those other matters, but I am also of course required, under the dictates of the CCA in El Kaharni, to consider and to reflect, in a sentence imposed upon the prisoner, the principle of general deterrence. Indeed, there are many citations to the effect that, particularly in offences of this nature, general deterrence is of very great importance. I also take into account the fact that in New South Wales there are no remissions. I propose to deal with these offences by concurrent sentences.

18 The applicant was taken into custody to serve the sentence imposed upon him but he was released to bail 12 days later, and has remained on bail pending the hearing of the appeal.

19 There are three grounds of appeal relied upon by the applicant as follows:

1. His Honour failed to give sufficient weight to S 16G Crimes Act (Commonwealth) 1914 : (lack of remissions in New South Wales);

2. His Honour failed to give sufficient weight to the matters in s 16A Crimes Act (Commonwealth) 1914, in particular:
The plea of guilty;
The character, antecedents, means and physical or mental condition of the person;
The prospect of rehabilitation of the person;
The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

3. The sentence was manifestly excessive.

The first complaint is that his Honour failed to have sufficient regard to the lack of remissions. His Honour did say that he was taking that matter into account, but the argument is that a sentence of 18 months in light of a maximum penalty of 2 years does not on its face reflect that the sentencing judge has allowed the normal discount of a third, see R v El Karhani (1990) 21 NSWLR 370 at 385. On 30 January 2002 the matter was brought back before Judge Freeman by the Crown on the basis that the sentence might be erroneous in this regard, but his Honour declined to interfere because an appeal had been lodged by the applicant. If the normal discount of a third were given to reflect the absence of remissions, a sentence of 16 months results from a maximum penalty of 2 years.

20 Although, generally speaking, the appropriate discount for the non-availability of remissions is a third, it is not immutably so. In Sweet (2001) 125 A Crim R 341 Spigelman CJ said, in reference to a similar submission:

In the present case, an experienced sentencing judge, who is well aware of the practice, departed from it in exercise of his discretion. The norm should not be treated as some sort of rule or ratio applicable on a mathematical basis.

21 But before this ground can be determined, it seems to me that regard should be paid to the sentence imposed in light of the criminality reflected in the offences for which the applicant was before the court. Even if there is error shown under this ground, this Court will not intervene where it concludes that no other lesser sentence should have been imposed. By evaluating the sentence in light of the offences committed by the applicant, the other two grounds will also be determined.

22 The applicant committed frauds against the Commonwealth on a regular basis over a period of more than five years and thereby obtained in excess of $50,000 of public money. Each of the three offences with which he was charged was itself made up of a large number of fraudulent acts committed by the applicant. The money was used, according to the applicant, to support a heroin addiction and for gambling. The applicant had some criminal record, although nothing of great seriousness since 1988. But of course since 1993 the applicant was constantly involved in the sustained criminal enterprise reflected in the offences for which he was sentenced. This conduct involved, to a large part, the applicant assuming another identity and supporting it by fraudulent documentation. The offences, therefore, were each a serious example of their kind, as they represented not simply three isolated acts of criminality but an ongoing course of criminal activity involving three different types of benefits obtained by the applicant.

23 As against the objective seriousness of these offences which clearly, for the reasons given by his Honour, had to be met by a full-time custodial sentence, the only matter the applicant could rely upon in mitigation was his poor physical ill health. This was put forward both to explain the commission of the offences and to seek leniency in the punishment imposed upon him because of the likely effect of imprisonment upon his further well being. In so far as explaining the criminal conduct, it was stated that the applicant reacted to his illness and his belief of his imminent death by seeking release in drug usage, a comfortable lifestyle and gambling. However, the applicant did not give evidence and it is not apparent why he did not resort to counselling or other assistance to come to terms with his illness as he has done after his arrest for these matters. It is in that regard that his earlier criminal lifestyle seems to assume some relevance.

24 His Honour accepted that imprisonment was likely to be detrimental, not only to the applicant’s physical health, but also to his mental state. But the sentencing judge concluded that, in light of the fact that the illness of the applicant existed at the time of the commission of the offences and was a motivating force behind them, this matter could not be allowed to overcome the other factors that the punishment of the applicant had to reflect. I am not persuaded that his Honour was wrong in taking that view.

25 On this appeal it has been argued that in light of the fact that the offences arose from the one act of misrepresentation, they were at the lower to middle range of seriousness of their type and a sentence nearing the maximum for any of the offences was manifestly excessive. In my view, that approach should be firmly rejected. It suggests that, provided that the criminal enterprise can be viewed as a continuing course of criminal conduct derived from a single false representation, an offence under the section does not become more serious by reason of the length of time over which the defrauding occurs, the amount of money involved, the number of instances in which a representation is made to the Commonwealth in order to obtain a benefit, or the number of different types of benefits received. But all of those matters will be relevant considerations in determining the objective seriousness of a particular offence.

26 In any event, the approach suggested does not apply in the present case. The applicant used the false identity he had created to obtain different types of benefits that required him to make different applications with different false representations. In particular, there was a clear distinction between the fraudulent conduct in obtaining rent assistance in his own name and that used to obtain benefits in the name of Paul Turner. In my view each of the offences charged against the applicant involved significant criminality and the fact that they were part of the one course of criminal conduct designed to obtain as much money from the Commonwealth as possible without coming under notice, does not mitigate their seriousness.

27 In this Court the applicant relies upon the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 to indicate that his Honour’s approach to sentencing the applicant was erroneous. It was submitted that Judge Freeman must have considered that the three charges represented separate and distinct criminality and determined an overall sentence to reflect that criminality. It was argued that his Honour ought to have been conscious of the overlap between the offences and should have imposed a penalty that was appropriate for a single offence. In that way, so it was submitted, his Honour would have arrived at a sentence that was more appropriate to reflect the total criminality in the three offences before him.

28 It seems to me that the appropriate way for his Honour to have sentenced the applicant would have been to impose slightly lesser sentences for the offences individually and then accumulated the third offence on the other two offences. In my assessment the objective criminality involved in the applicant’s offences warranted a total sentence that exceeded the maximum available for any one of them. But his Honour clearly viewed the applicant’s medical condition as a substantial mitigating circumstance, otherwise a non-parole period of six months would have been manifestly inadequate to address the objective criminality of the offences before him.

29 In my view the sentence imposed upon the applicant was a lenient one, over all. As the sentencing judge stated, ill health cannot be used as an excuse to commit crime, see R v L (NSWCCA, 17 June 1996, unreported) where the relevant principles are discussed. If a full-time custodial sentence were not imposed upon the applicant, the courts would be indicating that, provided a person is so ill that imprisonment would be deleterious to his well being, he can commit serious crime with impunity.

30 A further report of the treating doctor has been tendered on the hearing of this application and the Crown does not oppose it’s reception. The applicant is complying with the treatment which has been in progress since his release on bail and a new regime is about to be commenced which would require the applicant to obtain his medication each month under supervision of an appropriately qualified medical practitioner. His prognosis is still guarded although it has improved somewhat. The treating doctor’s report contains this final paragraph:

I reiterate my objection to incarceration for this man for whom the health care system (as well as the patient of course) has worked very hard to improve his health status. It would be an extraordinary waste should the hard work put in by all be threatened by the jail system which I know to move prisoners around frequently and often does not hold their health or the provision of their medication as a high priority.

31 On the appeal, a report was tendered from a psychiatrist, Dr Olav Nielssen dated 30 September 2002 which discusses the motivation for the commission of the offences by reason of the applicant’s affliction with the HIV virus. The psychiatrist indicates that the applicant would probably benefit from further counselling and the possibility of a trial of treatment with anti-depressant medication.

32 Unfortunately for the applicant, this Court cannot give priority to his health and well being as the medical profession is required to do. The criminal justice system has at its heart the welfare of the community generally and its protection. The courts must tailor their sentences with an eye to that overriding concern so far as common humanity will allow. In the present case this Court must attempt to safeguard the welfare agencies from fraudulent conduct of the type committed by the applicant for the benefit of those who require that support to function in the community. The scarce resources available for that purpose must be protected from those, such as the applicant, who use them for their own gratification and self-interest. The criminal courts must fulfil their role in attaining this objective and, in my view, nothing less than the sentence imposed by Judge Freeman would be appropriate to that task.

33 In any event, there is no evidence before this Court that the treatment regime upon which the applicant has recently entered cannot be continued while the applicant is in custody for what will be, in light of the offences committed, a relatively short period.

34 Although the Crown has conceded that his Honour was in error in sentencing the applicant as he did, that was an error in my view of a technical nature in this particular case, and probably in the applicant’s favour. A sentence of 18 months with an effective non-parole period of six months was well within his Honour’s discretion, however that sentence was structured. However, in light of the fact that his Honour failed in sentencing the applicant to follow, what has been described in a recent decision of this Court as a “fundamental principle”, this Court must intervene in order to re-structure the sentences.

35 I propose, therefore, that the application for leave be granted and the appeal allowed in relation to counts 1 and 3. The applicant should be sentenced to 6 months imprisonment from 20 September 2002. That sentence is to expire on 19 March 2003. In relation to count 2, the applicant should be sentenced to imprisonment for 12 months to date from 20 March 2003, but the Court should order that the applicant is to be released on that date on entering into a recognizance subject to a security of $500 and on condition that he be of good behaviour for the term of the recognizance. I would confirm the reparation order.

36 WOOD CJ at CL: I agree.

37 SMART AJ: I agree.

38 WOOD CJ at CL: So the orders of the Court will be as Howie J has proposed.

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