R v Huntman

[2007] NSWDC 193

CITATION:	R v Huntman [2007] NSWDC 193
HEARING DATE(S):	6 September 2007
JUDGMENT DATE:	12 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment ; see Paragraph [76]; Make reparation orders ; see Paragraph [77]
CATCHWORDS:	Criminal law - sentence - social security fraud - multiple offences
LEGISLATION CITED:	Crimes Act 1914 (Cth)
CASES CITED:	R v Purdon (unreported) CCA 27/3/97 R v Townsend (2007) NSW CCA 215 R v Keir (2004) NSW CCA 106 R v JRB (2006) NSW CCA 371 Sopher (1993) 70 ACrimR 570 Kovacevic v Mills (2000) SASC 106 Cameron v Simounds (1993) 171 LSJS 305 Cruz v Treminio (2001) ACTSC 59 Ralph v Nawrojee (2003) WASCA 5 R v Brewer (2004) ACTCA 10
PARTIES:	Crown Wilhelmina Huntman
FILE NUMBER(S):	07/41/0125
COUNSEL:	Ms S Baker-Goldsmith (Crown) Mr B Collaery (Offender)
SOLICITORS:	Commonwealth DPP (Crown) Gordon Naylor & Associates, Queanbeyan (Offender)

JUDGMENT

SENTENCE

1 HIS HONOUR: Wilhelmina Vogt, who was charged under the name of Wilhelmina Huntman, pleaded guilty in the Local Court to two charges of defrauding the Commonwealth, and two charges of obtaining financial advantage by deception. She adhered to her pleas in this court and, accordingly, she is convicted of those four offences. The maximum penalty for each offence is ten years imprisonment and a substantial fine.

2 The agreed facts are as follows. The offender, whilst receiving social security payments under the name, Huntman, also received payments under the names of Vogt and Venda Mona Danushka Vegtelaar. Vogt was not a false name and it was, in fact, the name by which she was known at the time, but that was not something she disclosed to social security. She maintained falsely named bank accounts, and she used false documents of identity in perpetrating the fraud, and as a result she was overpaid a total sum of $372,619.30. The social security payments have been administered by an agency with different names but I will refer to it as Centrelink.

3 The offender was born in the Netherlands on 12 April 1934, and came to Australia in April 1958 on a Netherlands passport. In August 1958 she married Gerardes Johannes Huntman in Canberra and they separated in 1986. In April 1983, she opened a passbook account with the Commonwealth Bank in the name of Wilhelmina Huntman. In May 2001, she opened a statement account with the same bank, also in the name of Wilhelmina Huntman.

4 At various times she had bank accounts with Westpac Bank in the name of Wilhelmina Vogt, and those were three different accounts. In November 1992, she opened an account in the name of Venda Mona Vegtelaar with the State Bank in Belconnen. This bank was taken over by the Commonwealth Bank and she maintained an account with a different number.

5 In December 1983 she enrolled with Medicare and obtained a Medicare name in the name of Wilhelmina Huntman. In 1987, she obtained a Medicare card in the name of Wilhelmina Vogt. On 1 February 1993, she enrolled in Medicare in the name of Venda Mona Vegtelaar, and obtained a Medicare card in that name also.

6 On 1 December 1986, she applied to Centrelink, Belconnen in the ACT, for a Widow B Pension in the name of Wilhelmina Dominica Huntman. In that application she stated a number of things that were correct, namely, that she was born in Holland, when she arrived in Australia, her name on arrival, where she was living at the time, and the fact that she had separated from her husband on 1 December 1986. She provided her old Netherlands passport in the name of Wilhelmina Vogt.

7 On 8 December, her application for a Widow B Pension was rejected because she had not been separated for more than six months, but she was paid sickness benefits in the name of Huntman until May 1987. On 29 April 1987, she reapplied to Centrelink for a Widow B Pension in the name of Huntman, and this application was granted on 14 May.

8 In April 1994, her pension type was automatically changed from Widow B to Age Pension and she had continued to be in receipt of an aged pension benefit in the name of, Huntman, at all material times, and they were paid into the Commonwealth Bank accounts that I mentioned.

9 On 3 September 1987, while still receiving payments in the name of Huntman, using the name Wilhelmina Dominica Vogt, she applied to Centrelink, Queanbeyan, not Belconnen, for an invalid pension. In that application, she stated that her date of birth was 12 April 1939, which was five years out of date, although it is not clear that that may not have been a reading error, that she was born in Holland, that she arrived in Australia at Fremantle in April 1958 under the name of Wilhelmina Vogt, which was correct. She gave the name of the ship, the Johan Van Oldenbarneveld, and that she was living at an address in Queanbeyan. She also stated that she was separated from her husband and she gave the name Cornelius Van Beek.

10 On 5 November, about two months later, her application for Invalid Pension was rejected because she was considered not to have a permanent incapacity. On 15 September 1987, she applied to Centrelink at Queanbeyan for a Widow B Pension in the name of Vogt, giving the same information that I have just referred to in relation to the Invalid Pension. She provided a Netherlands passport as being her identity and a copy of this was placed on the Centrelink file. She also provided a reference from Stephen McCracken, to say that he had known her for five years, that he tutored her in the English language, and that she had an adequate command of the language.

11 On 5 November, her claim for a widow’s pension was rejected because she had not satisfied the basic criteria. She appealed against the decisions to reject her claims for Invalid Pension and Widow B Pension. On 14 January that appeal was successful, and she was granted an invalid pension in the name of Vogt, backdated to 17 September 1987. In October 2000, that pension type was automatically changed from Disability Support to Age Pension and she continued to receive an age pension until the fraud was uncovered in 2006. The payment was made into the Westpac bank accounts referred to above.

12 On 5 November 1992, while she was receiving payments both in the name of Huntman and Vogt, she applied for a Widow B Pension at the Belconnen Centrelink Office in the name of Venda Mona Danushka Vegtelaar. In that application, she stated that she was born on 19 April 1940, that she had arrived in Australia on 29 April 1958, that she had separated from her partner, James Edward McDonald on 28 September 1992, and that she was living in Springdale Drive, Hawker, with her daughter, Lucia Vegtelaar, born 23 November 1976, and she gave a postal address at Post Office Box 1102, Belconnen, 2617. She provided as proof of identity the Netherlands passport, E336911. A copy was made and placed on the Centrelink file. It was the same passport that had been used to support her other two claims, but it had been altered with a different photo.

13 As proof of Lucia Vegtelaar’s identity, the offender provided a falsified Victorian extract of entry purporting to show details of the birth of Lucia Vegtelaar. A copy of this document was placed on the Centrelink file. Inquiries with the Victorian Births, Deaths and Marriages have revealed that there is no record of the birth of Lucia Vegtelaar, and there is no current record on the Victorian extract of entry with the number on the copy.

14 On 11 November 1992, the offender’s application for a Widow B Pension in the name of Vegtelaar was rejected, because she was not the correct age. On 5 November 1992, she claimed Job Search Allowance in the name of Vegtelaar and lodged that at the CES Job Centre, Belconnen. She gave similar information to that in relation to the application for the widow’s pension in the name of Vegtelaar. She did not mention her daughter, but she did say that her aunt, Wilhelmina Huntman, that is, herself, lived with her at an address in Springvale Drive, Hawker. As proof of identity she provided the same Netherlands passport, and a copy of that was placed on the Centrelink file. It was identical to the passport supplied by the offender in her application for a Widow B Pension.

15 The claim was granted and she was paid Job Search Allowance from 20 November 1992 to 11 March 1993. On 11 March 1993, she applied to Centrelink for a Widow B Pension in the name of Vegtelaar. She gave the same date of birth as she had given in her other applications in that name, and the same address. She also provided the same Netherlands passport, and listed her aunt, Wilhelmina Huntman, as living with her at the address. The application was granted and she was paid a Widow B Pension from 11 March 1993. In April 2002, this was automatically changed from Widow B to Age Pension, and she continued to receive an age pension payment until June 2006, when the fraud was uncovered. Those payments were made into the State Bank account, which became a Commonwealth Bank account when the bank was taken over. The surname, Vegtelaar, has been used but there are various variations on the first names.

16 As a result of using the name, Vogt, while already in receipt of payments in the name of Huntman, the offender was overpaid $209,711.96, and as a result of receiving payments in the name, Vegtelaar, she was overpaid $162,907.34. These overpayments covered the payments 4 May 1987 to 19 June 2006.

17 Centrelink detected the fraud by matching the post office box numbers, and, with police, executed a search warrant at the offender’s home address in Queanbeyan on 14 June 2006. There they found documents linked to each of the three identities, including three purses, each with a set of documents with one of the identities. The documents and the purses included pension cards, keycards, Medicare cards and other concession cards. Also found was the passport, which was examined and found to have been altered to assist in making false claims. The offender declined to be interviewed, but she did speak to investigators on 19 June 2006, and made full admissions. She stated that the fraud had started when, as a result of domestic violence, she changed her name to Vogt. She realised that it was wrong to get payments in three names but she was too scared to tell Centrelink. The money had been used for poker machines at the Queanbeyan Leagues Club and the Southern Cross Club. None of the $371,904.50 has been repaid.

18 Each of these four offences must be regarded as extremely serious, if only because of the amount of money involved. Every dollar, which the offender fraudulently took, was money taken from the pocket of every Australian taxpayer. Social security fraud cannot be regarded as less serious than other offences because there is no individual victim. Every honest member of society is a victim. As the Court of Criminal Appeal in New South Wales pointed out in a case to which I will refer shortly, the case of Purdon, social security fraud is even more serious because it is particularly difficult to detect.

19 I have been referred to a number of cases both by Ms Baker-Goldsmith, who appeared for the prosecution, and Mr Collaery for the defence, and I want to say something briefly about each of those authorities. The first is Purdon, an unreported decision of the Court of Criminal Appeal on 27 March 1997. This case is well known, for in it Hunt CJ at CL made the statement that:

“In the case of a fraud upon the social security system a custodial sentence is to be imposed unless there exist very special circumstances justifying some less order”.

20 That statement represents the starting point for any court in New South Wales and considers relevant previous decisions. The principle is binding on me, but I take into account the consideration it has received in other courts.

21 There are other reasons why that case is relevant. The respondent was the victim of an abusive and violent husband, and said that she did not know she was breaking the law until some time after the event. Evidence was tendered on her behalf from a psychologist to the effect that she had a particular fear of imprisonment. Her counsel also advanced a number of personal factors, which were said to create a special case, including her family situation, her previous good character, her attempts to repay the money and diagnosis of a psychological disorder. In that case the offender was significantly younger than the offender here, but there was only one charge.

22 Largely because of the principle of double jeopardy, the Court of Criminal Appeal quashed the suspended sentence imposed by the trial judge, and required her to serve a sentence of nine months by way of periodic detention. The amount involved in that case was significantly less than in the case before me, and the fraud extended over seven years and eight months, that is, roughly one-third of the period involved here. In this case, the Probation and Parole Service report that this offender is not suitable for periodic detention.

23 The second case is Townsend (2007) NSW CCA 215. In this case, an eighty-four year old woman had committed similar crimes to those in this case over a thirty year period. She pleaded guilty to seven offences. She was sentenced to concurrent sentences, the longest of which was three years’ imprisonment, but all were suspended. The Chief Judge at common law, with whom Hidden and Price JJ agreed, found that the sentences were manifestly inadequate, and the sentences should have been ones of full-time custody. The personal circumstances of the appellant in that case were so significant that the court nevertheless declined to interfere.

24 The next case is Keir (2004) NSW CCA 106. The appellant in this case received a sentence of two years imprisonment, to be released on recognizance after six months, on two counts similar to those before me. During the hearing of the appeal, he apparently had a cardiac seizure in the court cells and was not well enough to be brought into court.

25 The bulk of the argument in this case concerns the effect of the availability, or lack of it, of medical support facilities within the correctional service. This is a matter about which I have previously expressed very serious concerns, particularly in the case of JRB, where the Court of Criminal Appeal considered my decision at (2006) NSW CCA 371. In that case I had to sentence an offender, who suffered from a serious chronic illness. I considered that his life and health would be at risk if he were required to serve more than a relatively short period in custody. While agreeing in principle with what I said, the Court of Criminal Appeal found that the sentence I imposed was manifestly inadequate, and, despite concerns about the offender’s health, increased both the sentence and the non-parole period. I cannot ignore this decision.

26 The Court of Criminal Appeal noted in Keir, that the sentencing judge intended that the offender be held in the prison hospital at Long Bay, and expressed some concern that he was not. The court reduced the period required to be served in custody from six months to slightly less than three months.

27 Sopher (1993) 70 ACrimR 570 is also well known. The facts are remarkably similar to those before me, although this case occurred more than twenty years ago. I read the following passage from the headnote of the appeal by the prosecutor against the inadequacy of the sentences:

“The respondent assumed five identities in order to obtain social service benefits wrongfully. The offences were meticulously and cunningly planned, and occurred over sixteen years, during which time he obtained more than $400,000. He pleaded guilty at a fairly early stage, was 70 years old, in poor health, and he made restitution.”

28 In this case, the offender says that she is unable to make restitution.

29 The offender Sopher was sentenced to three years and five months imprisonment, with a non-parole period of one year and six months, on five counts, and four years imprisonment with a non-parole period of one years and six months on ten counts of fraud. The appeal was allowed on the ground that the sentences imposed were manifestly inadequate. They did not reflect the high degree of criminality of the respondent, and undervalued the element of general deterrence. While health factors may be relevant, they will not usually prevent the imposition of a gaol sentence if imprisonment is otherwise warranted. An appropriate balance has to be kept between the criminality in question and any health or shortening of life considerations.

30 The next case is Kovacevic v Mills (2000) SASC 106. A bench of five judges considered an appeal against a sentence of imprisonment imposed on a young man, who committed thirty-four offences against the Social Security Act. It was an important factor in the court’s decision that the offender had repaid almost all the gains for his offences. The court, which included Doyle CJ, considered a number of cases in South Australia and other jurisdictions, which had made statements about the purposes of sentencing for revenue and social security offences, in particular, Cameron v Simounds (1993) 171 LSJS 305, a decision of the Supreme Court of South Australia, where the court emphasised general deterrence as the major factor in sentencing for revenue offences, and also the case of Purdon, which I have already mentioned. The Full Court took the view that in such a case the court must impose a sentence, which is appropriate to the particular circumstances of the case. There is always an element of discretion. They read the judgment of Hunt CJ in Purdon as meaning that a sentence of imprisonment should be the starting point for a court in considering the sentence to be imposed in the cases of social security fraud rather than a rigid requirement.

31 In Cruz v Treminio (2001) ACTSC 59, Crispin J considered an appeal from the Magistrate’s Court, where the appellant had been convicted of a social security fraud involving about $37,000 over four years. His Honour purported to follow the approach of the Full Court of South Australia in Kovacevic v Mills to what he described as the “somewhat inflexible rule laid down by the New South Wales Court of Criminal Appeal” in Purdon. His Honour found that a suspended sentence was manifestly inadequately, but declined to interfere because of the principle of double jeopardy.

32 In Ralph v Nawrojee (2003) WASCA 5, the Full Court of Western Australia preferred the approach taken in South Australia to that in New South Wales. Their Honours indicated that in appropriate cases, while imprisonment might be a reasonable sentence, if other factors were present, such as, the need for rehabilitation, that might lead the court of impose a non-custodial sentence or as, in that case, to order the immediate release of the appellant who had served a short period in custody. The appellant in that case was a young man, and the offence was far less serious than the offences before me.

33 Finally, in Brewer (2004) ACTCA 10, Gray, Connolly and Gyles JJ of the ACT Court of Appeal indicated that, in its opinion, there was no real conflict between the approaches taken in South Australia, and that in New South Wales. What Hunt CJ had said could not be taken as a rigid rule, which should not be departed from. However, full-time imprisonment should be the appropriate sentence in most cases where there is a deliberate social security fraud. In that case the respondent had obtained benefits amounting to over $80,000 by fraud, and the Court of Appeal found that the trial judge was in error in suspending the whole of the sentence.

34 This review of the cases suggest to me that there is no rigid rule that a person guilty of social security fraud must be sentenced to full-time imprisonment without exception. If there are strong prospects of rehabilitation, evidence of reparation, or other relevant factors, particularly where there is a combination of those factors, it may be appropriate to impose a sentence which, although custodial, does not require full-time custody.

35 I am not convinced that this is a case where a starting point of anything other than a sentence of full-time custody would be appropriate.

36 I am required to have regard to the provisions of the Commonwealth Crimes Act, s 16A and 17A. S 17A provides that a sentence of imprisonment can be imposed only when the circumstances leave no alternative.

37 In this case, the seriousness of the offences, and the deliberate steps taken by the offender, especially the later application for a pension in the name of Vegtelaar, lead me to the conclusion that there is no alternative, in this case, to a sentence of full-time custody.

38 I have considered the matters set out in s 16A. This offender has no previous criminal convictions, and apart from these offences, has been of good character. The offences, of course, form part of a course of conduct consisting of a series of criminal acts of the same or a similar character over a longer period. The loss to the people of Australia is significant, but the offender has shown a degree of contrition and has pleaded guilty. She has not made any attempt to repay the amount involved.

39 It is necessary for a court in passing sentence for these offences to consider both general and specific deterrence. In this case, I could not be convinced that it is impossible that this offender will never attempt a similar offence again. As the prosecution points out, the procedures followed by Centrelink have changed, and are likely to reveal any future attempt of fraud along the lines of those which give rise to these offences. However, this offender has deliberately set out to commit fraud or, at least, to conceal fraud, on a continuous basis over a period of twenty years. She must be deterred from even the thought of doing so in the future. However, given her age, and in this case I consider the general deterrence is much more relevant than specific personal deterrence.

40 The cases to which I have referred make it abundantly clear that in the case of social security fraud, which is very common, general deterrence is very important, and the courts must send a message that no matter what the circumstances, a person who commits social security fraud will be punished severely. It is not uncommon that the motive for defrauding social security, or as in this case, for continuing to defraud is, at least in part, a gambling habit. It is also unfortunately not unusual that people who commit social security fraud are ill, elderly or both.

41 There are some matters personal to this offender. She was born, as I have said, in 1934 in the Netherlands, and as a child she lived through the horrors of the Second World War, including the German invasion of her country. In 1944, when she was ten years old, she and her family were trapped in an air raid shelter under the family home, during a bombing raid by the American Air Force. They could not leave for two days. When they emerged from the shelter, the whole of their neighbourhood had been destroyed, and most of her school friends and neighbours had been killed. She claims that this has had a traumatic effect on her, and I do not doubt that such an event would leave anyone unscarred.

42 In 1958, her parents decided to emigrate to Australia. She was then twenty-four. She says that she did not want to move to Australia, but the Australian authorities would not accept a family with only one child. Her brother had agreed to go to Australia with her parents, and she reluctantly agreed to join the family so that they could have a better life. They arrived in Australia and were placed in an immigrant camp in the Wollongong suburb of Fairy Meadow. The conditions there were unpleasant. The offender tried to get a job, but was unsuccessful. Apparently she remained in this centre for some months, and while she was there she continued to experience tension in her family. Her evidence was that her parents were extremely strict, despite her mature age.

43 She met another Dutch immigrant, Mr Gerard Huntman. He was, at first, kind to her, and said that if she agreed to marry him, he would take her away from the immigrant camp and support her. Again, she reluctantly agreed. She married Huntman, they moved to Canberra, and she has lived in the Canberra or Queanbeyan area ever since.

44 The offender said that she very quickly became aware that the marriage was violent. Huntman was an alcoholic and beat her regularly. She had two male children, but she says that the only time she was permitted to leave the house was to take the children to and from school. Her husband was extremely controlling and violent. This evidence was corroborated by the evidence of Mr Stephen McCracken, who was the best friend of her older son. Mr McCracken visited the family home regularly from his teenage years, and witnessed signs of violence and, at least, on one occasion actual violence on the part of Huntman towards the offender.

45 In recent years, Mr McCracken, whom the offender refers to as her “nephew”, has undertaken considerable responsibility in caring for her. Since she was arrested and charged, she has moved into his townhouse in the ACT and he drives her to medical appointments and to see her family.

46 The offender says that on one occasion, her husband pushed a heavy wardrobe on top of her. This resulted in damage to two discs in her back, and since that time she has had back pain and mobility problems.

47 In 1986, with the assistance of her brother and her children, she left the matrimonial home and obtained an Apprehended Violence Order against Huntman. She moved first to public housing in the Queanbeyan area, and reverted to the use of her maiden name, Vogt, which she still uses. I have already stated that, at that time, she applied for a widow’s pension in her married name, and she received a sickness benefit until she fulfilled the criteria for a widow’s pension.

48 When she became eligible for a widow’s pension, she applied for it using the name that she was then known by, that is Vogt. When she applied for this pension, she was apparently assisted by a friend. She said that, at this time, she did not speak English well, although she had been in Australia for nearly twenty years. She said that she did not learn English because her husband would not permit her to leave the home.

49 As I have said, she made a false statement regarding the name of her husband in this application, and she said that she did this because she did not want her husband to find her. She used the name of Van Beek, who was a person who had befriended her, but who ultimately returned to the Netherlands. She thought that her original pension in the name of Huntman would cease when the Widow B Pension in the name of Vogt was granted but, in fact, she continued to receive both pensions until her arrest in 2006.

50 I infer from the fact that she maintained separate bank accounts, and that she did not disclose the true name of her husband, that she intended to receive two pensions from the outset. I do not accept her evidence that she did what she did, in applying for a separate pension in a different name, because she was afraid that her husband would find her and be violent towards her. I have no doubt that she had a genuine fear of her husband’s violent behaviour, but I am not totally convinced that this was the motivating factor for her applying for a second pension.

51 It is also clear from her evidence that she moved addresses within the Queanbeyan area on several occasions. I assume that each time she moved, she notified Centrelink, whatever its name may have been at the time, of her change of address. It would have been a simple matter for her to advise Centrelink that she appeared to be receiving two pensions by mistake, but for nearly twenty years she made no effort whatever to tell the authorities that she was receiving a second pension.

52 In 1992, she applied for the third pension, using a totally fictitious name of Vegtelaar. It was, at first, refused but granted when she appealed, and she arranged for this pension to be paid into a bank account with a totally different bank, an account which she opened for the purpose. She gave a totally fictitious name of a husband, and she falsely stated that she had a daughter who was living with her. Her evidence was that she took this action because she wanted to, and I quote, “Do away with”, both Huntman and Vogt, and that her intention was to notify Centrelink that both these people had left Australia or had died, so that those two pensions would cease, and that she would continue to receive the third pension.

53 I do not accept this evidence. I find that even under oath, she told deliberate lies about her motivation. In her evidence, she said that from an early time she did not disclose matters because she was afraid of going to prison. It is clear from this evidence that she was fully aware that what she was doing was wrong, and that it was punishable by imprisonment.

54 She gave evidence about her family life. She has two sons. One has a small child and still lives in the Queanbeyan area, and she has contact with him. The younger son was married and had three children, who still live in Canberra with their mother, but he now lives in Morocco where he has remarried and has a new family.

55 The offender’s evidence was that the three children, who are in Canberra, are not well cared for. Their mother is a native of Bangladesh and makes repeated and frequent visits to that country, leaving the three children in Australia. The oldest child, a girl, now has a job. The second child, a boy, has had friction with his mother. Although the mother is not religious, she was brought up as a Muslim and the son has now become attached to some other religious sect. For this the offender says his mother has threatened to throw him out of the house.

56 The offender’s evidence, corroborated by that of Mr McCracken, is that she has spent a great deal of time caring for these three children. If the mother is out of the country, she says that she is the only person who cares for them. However, these children do live with their mother, and only the youngest is still at school and in need of constant care.

57 The offender says that even after she moved to Queanbeyan, she rarely left the house except to see the members of her family. However, in about 1999 or 2000, a neighbour said to her that she, the neighbour, was going to the club and invited the offender to join her. The offender went with the neighbour to the Queanbeyan Leagues Club. The neighbour showed her poker machines and taught her how to play them. The offender enjoyed this experience. She said that she felt she was living for the first time in her life. I can understand this, as it cannot be disputed that her whole life has been characterised by violence, tension and sadness.

58 From then on, she went to the Queanbeyan Leagues Club each Monday with the neighbour, until the neighbour moved out of the area to live with her daughter. The offender said that after this she continued to go to the club regularly on Mondays, even though this was very difficult for her. She said that she would gamble up to $300 per week on the poker machines. At first her gambling was successful, but later she began to lose money. There were occasions on which she would win, but she said she would lose this money the next time she gambled. In her interview with Centrelink and the police, she mentioned the Southern Cross Club, but she did not mention that in her evidence in this court.

59 Given the amount of money involved, which the offender obtained fraudulently from the Commonwealth over a period of nearly twenty years, I do not accept her evidence about the scale of the gambling. I do accept her evidence, and that of Mr McCracken, that she did buy gifts and clothes for her grandchildren, and that she did send money to her younger son in Morocco, on one occasion. There was evidence that she now has only a few hundred dollars in the bank, and it is clear that when her fraud was discovered and she was charged, the authorities made a very thorough investigation. Mr Collaery, who appeared for her, conceded that. If more assets had been discovered in the course of that investigation, the court would, no doubt, have been informed of them.

60 I must infer that a very large proportion of the money, which she obtained as a result of her fraud, was gambled on poker machines, and that inference is the only rational inference that I can make in the circumstances. I think the extent of her gambling is much greater than she told us about.

61 In evidence, there is a pre-sentence report which, in general terms, is consistent with the offender’s evidence about her personal circumstances and the psychologist’s report, which I am about to discuss. It is less detailed than either. Mr Sutton, a clinical psychologist, saw the offender for five hours in June this year, and administered an extensive battery of tests. His report is in evidence. Amongst his findings are, and I summarise and to some extent paraphrase:

The offender neither malingers nor exaggerates any cognitive symptom.

She is vital and able to communicate, though her ability to use English is limited.

She has problems with abstract thought.

Her verbal and visual memory functions are compromised and well below expectations based on her age group.

Her video spatial organisation and perception of spatial relationships is askew.

62 Mr Sutton was prepared to express the opinion, for reasons stated in his report, that her condition indicates a long standing personality disorder, possibly histrionic. This is consistent with the symptoms she displayed and his tests. However, he said that it was impossible for him to reach definite diagnostic conclusions on the basis of one consultation. I should say that Mr Sutton’s report, and his evidence, in my view, is a model in its clarity and its distinction between test results and opinion.

63 Mr Sutton cannot determine, on the basis of his statistical analysis, whether general intellectual decline has taken place. His said that it is possible that she may be developing senile dementia. He recommended further tests, including an MRI scan, and neurological consultation.

64 Her general practitioner, Dr Hingley, referred her recently for a CT scan, which was clear, but expressed the opinion that a neurological consultation, and MRI scan, would not be practical in time, even though the offender said she is willing to pay. In view of her evidence, it is difficult to see where she could get the resources to pay. Dr Hingley also refers to chronic osteoarthritis. He did not confirm her evidence that she requires urgent replacement of both hips. If he had been aware of a specialist’s opinion to this effect, I assume he would have mentioned it.

65 Once her fraud was discovered, the offender readily admitted the offences, and pleaded guilty at the first possible opportunity. In addition, she has expressed contrition and remorse. She is entitled to a significant discount on her sentence for this reason.

66 A case of this nature is always complex, and I am told that the facts in this case are particularly so because of the pains that the offender took to conceal possible links between the three pensions she was receiving, not only giving separate names and addresses, but also separate accounts. Because of that complexity, her pleas of guilty have a particular utilitarian value.

67 I was asked by Mr Collaery to be merciful to this offender because of the unfortunate circumstances of her life, and her current health. As I have indicated, her life has been marked by cruelty, oppression, violence, loss and misery. I am prepared to accept that, apart from her children and grandchildren, and the brief period during which she visited clubs, there has been little joy in her life. She is relatively advanced in years, and she has severe mobility problems, at least, partly due to the violence of her former husband.

68 The offences are, in my view, extremely serious, and they were committed in a way that suggests deliberate planning and a degree of ingenuity. There were a series of similar offences. It would have been an easy matter, if the offender had been as innocent as she sought to convince this court, for her to inform the authorities of her change of name. She had ample opportunities to do so.

69 I am mindful of her health and age, and of the difficulties that have followed her throughout her life. If it were not for those circumstances, the nature and seriousness of these offences would mean that I would have imposed a prison sentence three to four times as long as those that I propose to impose on her.

70 It is also unfortunate that she resides outside the metropolitan areas of Sydney, Wollongong and Newcastle. The law of New South Wales provides for home detention, but that alternative is available only for people who reside in specified areas of the state. It is not available for people, convicted in New South Wales, who live, as this offender does, outside New South Wales, or who live in areas outside the metropolitan areas of Sydney, Wollongong and Newcastle.

71 The circumstances of this case incline me to think that if home detention had been available, I would have ordered that she be assessed for suitability to serve her sentence in this way. Unfortunately, the residents of rural New South Wales are discriminated against in this way, and the option is not available.

72 In the circumstances, there is no alternative to a full-time custodial sentence. I am not prepared to suspend the sentences wholly as, in my view, the interests of justice, considering the particular circumstances of this offender, would not be properly served if she was not required to spend a relatively short time, at least, in full-time custody.

73 I have given serious thought as to whether there would be any point in making the reparation orders sought by the prosecution. Generally speaking, where I am satisfied an offender has no assets from which such an order might be satisfied, I can see no point in making such an order. In this case, I am not satisfied, on the balance of probabilities, that further assets, to which this offender is entitled, may not come to light. If they do, it is only fair that those assets should be available to recompense the people of Australia, who have been deliberately defrauded by this offender. I, therefore, make the reparation orders sought.

74 On each of the two charges arising from the fraud committed when she obtained a pension in the name of Vogt, the offender is sentenced to a term of ten months imprisonment. She will be released on recognizance after serving three months in full-time custody. The sentence will commence today, 12 September 2007, and expire on 11 July 2008, but the offender is to be released on 11 December 2007, on entering into a recognizance in the sum of $250 to be of good behaviour for two years.

75 Because the two groups of offences are entirely separate and, in my view, the later offences are more serious than the earlier, I have concluded that the sentences should not be totally concurrent, but that there should be some accumulation. The degree of accumulation takes into account the offender’s history, health and age.

76 On each of the two charges arising from the fraud committed in relation to the name Vegtelaar, which I regard as undoubtedly deliberate, cunningly and carefully planned, with full knowledge of the consequences, the sentences will be more severe. The offender is sentenced to a term of eighteen months, and these sentences reflect discounts for the plea of guilty, but she is to be released on entering into a recognizance after serving seven months of that sentence. The sentence will commence on 12 November 2007 and expire on 11 May 2009, but the offender is to be released on 11 June 2008, on entering into a recognizance in the sum of $250 to be of good behaviour for two years. So, 11 June 2008 is the earliest release date, and the total period of full-time custody will be nine months.

77 The reparation orders that I make will be in the sum of $371,904.50. There will be no fixed rate of repayment.

78 BAKER-GOLDSMITH: Your Honour, if I might just rise at this point?

79 HIS HONOUR: Yes.

80 BAKER-GOLDSMITH: The common practice is that your Honour makes a single recognizance release order in respect of the sentences your Honour has passed on the counts. As I understand the order your Honour proposes to make, your Honour is proposing two separate recognisances.

81 HIS HONOUR: Yes.

82 BAKER-GOLDSMITH: It’s normally the practice, your Honour, that a single recognizance--

83 HIS HONOUR: Yes, I understand that. I haven’t had quite this situation before. Where there are concurrent sentences.

84 BAKER-GOLDSMITH: Your Honour, the only provision of the Commonwealth Crimes Act, which seems to apply here, is section 19AC of the Commonwealth Crimes Act…….I am looking particularly at subsection (1) of that section, your Honour.

“Where a person is convicted of a federal offence, or two or more federal offences, at the same sitting, the court must make a recognizance release order in respect of that sentence or those sentences”.

85 BAKER-GOLDSMITH: And it is my submission that that supports the practice that a single recognizance release order is made.

86 HIS HONOUR: I think if they are totally concurrent I would agree with you. Where they are partially cumulative, I don’t. I think it is necessary to make two separate orders.

87 BAKER-GOLDSMITH: I don’t take it any further, your Honour.

88 HIS HONOUR: Thank you.

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