R v Paul

[1993] QCA 396

IN THE COURT OF APPEAL [1993] QCA 396

SUPREME COURT OF QUEENSLAND

C.A. No. 278 of 1993.

Brisbane

[R v. Paul]

T H E Q U E E N
v.
CHERIE JANETTE PAUL

(Applicant)

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The President
Pincus J.A.

Davies J.A.

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J udgment delivered 19/10/93

Judgment of the Court
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
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CATCHWORDS: CRIMINAL LAW - SENTENCE - Applicant convicted of numerous offences of defrauding the Commonwealth (s.29D Crimes Act 1914), imposition (s.29B), stealing (s.398 Criminal Code of Queensland), false pretences (s.427 Criminal Code), knowingly obtaining payment of an allowance not payable (s.1347 Social Security Act 1991), assault (s.60 Australian Federal Police Act 1979) - whether non-parole period of 3 years fixed by the judge was manifestly excessive - appellant appeared to suffer from various psychiatric disorders - whether a lengthy parole would more

adequately provide recommended

psychotherapy and counselling.

Counsel:	Mr S. Herbert Q.C. for applicant. Mr F. Walsh for the Crown.
Solicitors:	Legal Aid Office for Applicant. Director of Public Prosecutions for Crown.
Hearing Date:	8 October 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 278 of 1993.

Brisbane

Before The President
Pincus J.A.
Davies J.A.

[R v. Paul]

T H E Q U E E N
v.
CHERIE JANETTE PAUL

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 19 October 1993

This is an application for leave to appeal against sentence. The applicant was convicted of numerous offences of dishonesty in the District Court and sentenced to varying concurrent periods of imprisonment, the longest being 5 years and 6 months.

The judge fixed a non-parole period of 3 years and it is that of which the applicant principally complains. Mr Herbert QC, who appeared for her, submitted that the case was one in which a lengthy period of parole was desirable and therefore a shorter non-parole period should have been fixed. In that connection he relied particularly upon some psychiatric reports. If one were to consider the case without reference to those reports it would be difficult to see much merit in the application. The applicant pleaded guilty to 25 counts, all but one of which alleged one kind or another of dishonest conduct; the last count was a charge of assault upon a policewoman. The periods during which these offences were committed fell within the years 1986, 1990, 1991 and 1992. Counts 1 to 5, alleging offences committed between 4 March 1986 and 8 September 1986, were allegations of having fraudulently used credit cards in a number of false names. Counts 6 and 7, again in 1986, related to the applicant having attempted to obtain credit cards in a false name by applications containing false information. Counts 8 to 14 and 19, relating to periods in 1990, 1991 and 1992, were social security frauds. The applicant managed to obtain unemployment benefits in as many as eight false names and at one period to receive seven lots of unemployment benefits concurrently. These were the most serious offences in respect of the amount obtained, which was over $80,000. Counts 15 to 18, offences committed in 1991, allege the obtaining of amounts from automatic teller machines by fraudulent means. Count 20, from a date in July 1992, alleged a fraudulent loan application made to a finance company. Counts 21 to 24, dated 1992, again concern the obtaining of social security payments under false names. The last count was, as we have said, one of assault. The total amounts obtained were a little short of $100,000.

The applicant was, on 30 October 1986, convicted in the Southport District Court of numerous offences for dishonesty committed in 1985 and was sentenced to 2 years imprisonment with a recommendation that she be considered for parole after serving 9 months. She had originally been due to appear in respect of 1984 and 1985 offences, in the District Court, on 23 January 1986, but absconded and committed the offences charged in counts 1 to 7, before her arrest on 10 September 1986 in relation to the 1984 and 1985 offences. The applicant was released from prison in July 1987 and was convicted on 12 October 1987 in relation to a further 1985 offence; in consequence of that, she served a further brief period of imprisonment, being released on parole on 27 October 1987. In July 1989 the applicant breached a condition of her parole by failing to report. It appears that she was ultimately arrested in October 1992 in respect of her breach of parole and was, at the time of her sentencing the subject of this application (30 July 1993), serving a term of imprisonment in respect of her breach of parole. It was during the period between her failure to report and the arrest in October 1992 that the offences charged in counts 8 to 24 were committed.

The evidence discloses that the applicant has seen numerous psychiatrists in this State and elsewhere, two of whom have made reports which were placed before the sentencing judge. One, Dr R James saw the applicant in 1986 and formed the opinion that she was extremely depressed, but fit to plead. The applicant told Dr James that businesses in which she and her husband were engaged failed in 1984 and bankruptcy supervened. She said that she decided to get revenge on people who were involved in the bankruptcy and disposal of family assets.

The other psychiatrist, Dr Mulholland, saw the applicant in 1987 and again in 1993. On the first occasion the applicant was in prison, a situation which she claimed to find comfortable. Dr Mulholland said that he thought the applicant was suffering, in 1987, from a depressive disorder and an identity disorder as well as institutionalisation neurosis. He recommended that she be discharged from gaol as soon as possible, and it appears that she was released about that time. In Dr Mulholland's second report he referred to having seen the applicant in March 1993 when she again expressed herself as being reasonably content with being in prison. Dr Mulholland said that he could not diagnose her as having a depressive illness, but considered the possibility of her being a manic depressive. He was not prepared to diagnose that and he also discussed the possibility of her having "multiple personality disorder". It appears from the report that one difficulty the doctor had in assessing the applicant was that he "could not discount the possibility that she may have been telling me what she perceived I wanted to hear."

The applicant told Dr Mulholland that she spent her time planning bigger and better offences and that she intended to resume her life of crime immediately upon release from prison. She seemed to Dr Mulholland to think that certain banks and financial institutions deserved to be taken down because they did not check up on her. She told the doctor that she began her social security frauds to obtain identity papers to make it easier for her to continue her activities against financial institutions.

One then has a person who has had, prior to her absconding at the beginning of 1986, numerous offences of dishonesty, not the subject of these proceedings. She plainly has a most unusual - Dr Mulholland says "disturbed" - personality, and expresses herself to be determined to continue her campaign of fraud. Her embarking on the course of conduct she has followed when not in prison is said to have been prompted, directly and indirectly, by the heavy losses she and her husband suffered in 1984 relating to some real estate investments.

Mr Herbert mentioned, as a matter the judge should have taken into account, that the applicant had been in custody since October 1992; however that appears to be of limited relevance because that was a consequence of her breach of parole in relation to a previous sentence. It is difficult to see what the learned sentencing judge could have done other than to impose a substantial term of imprisonment, and in our opinion, impossible to hold that the head sentence was one outside the range of a proper exercise of discretion. Mr Herbert's principal point was that the judge had no proper justification for setting a non-parole period, in respect of counts 8 to 14 and 19, of 3 years from 2 August 1993. The judge did that under s. 19AB of the Crimes Act 1914 which required the Court, the applicant having been convicted of a "Federal offence", either to fix a non-parole period or to make a recognisance release order, unless satisfied that neither was appropriate. Mr Herbert argued in effect that no special reason appeared to justify setting a non-parole period other than that which applies, in the absence of any order to the contrary, in relation to State offences, namely one half of the head sentence. His contention was that in view of the apparent need of the applicant for counselling (according to Dr Mulholland's second report) an order should have been made having the result that she would have a lengthy period on parole. The argument loses some strength when one considers the history of the matter, including the applicant's having absconded when on bail and breached her parole by failing to report. We note that the judge made a strong recommendation for psychotherapy and counselling and see no reason to assume that the applicant would, if she were given earlier parole and complied with her parole conditions, receive more intensive or effective psychotherapy and counselling than she would if the judge's order were left undisturbed. One has to recognise the possibility that if the applicant adheres to the position she explained to Dr Mulholland, viz. that she would resume her life of crime immediately upon release from prison, she may not have the benefit of parole. But we can see no ground for criticism of the trial judge in relation to his fixation of a non-parole period; his Honour apparently regarded the offences as being such as to warrant the imposition of a minimum 3 year period before parole and we are far from thinking that this was in error.

The application must be dismissed.