R v Skuta
[1998] VSCA 35
•26 August 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Not Restricted
No. 85 of 1998
| THE QUEEN |
| v |
| RAYLENE MAY SKUTA |
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JUDGES: | WINNEKE, P., PHILLIPS and KENNY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 August 1998 | |
DATE OF JUDGMENT: | 26 August 1998 | |
MEDIA NEUTRAL CITATION: | [1998] VSCA 35 | |
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Criminal law - Sentence - Defrauding the Commonwealth by false social security claims - Head sentence of three years confirmed - Non-parole period of two years' imprisonment manifestly excessive - Reduced to nine months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. D. Parsons | Solicitor to Cth. DPP |
For the Applicant | Mr. P.M. Taft | Kevin Davine & Sons |
WINNEKE, P.:
I will invite Kenny, J.A. to give the first judgment in this application.
KENNY, J.A.:
On 7 April 1998 the applicant pleaded guilty in the County Court at Morwell on an indictment containing one count of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (count 1) and two counts of forging a document deliverable to the Commonwealth contrary to s.67(b) of the Crimes Act 1914 (counts 2 and 3). The charges related to the applicant's claiming certain benefits from the Commonwealth Department of Social Security under a false name whilst in receipt of disability support pension and forging certain letters in relation to that fraudulent claim. The offences occurred during the period between 22 April 1994 and 22 August 1996. At the time of the offences the maximum penalty for defrauding the Commonwealth contrary to s.29D of the Crimes Act was 10 years' imprisonment, 1,000 penalty units or both, and the maximum penalty for forging a document contrary to s.67(b) was 10 years' imprisonment, 1,000 penalty units or both.
After hearing a plea in mitigation, the learned sentencing judge sentenced the applicant to three years' imprisonment on count 1, such sentence commencing immediately. On counts 2 and 3 the applicant was sentenced to six and nine months' imprisonment respectively, such sentences commencing immediately. The sentences imposed on counts 2 and 3 were ordered to be served concurrently with the sentence imposed on count 1, making a total effective sentence of three years' imprisonment. The judge further ordered that, after serving a period of two years' imprisonment, the applicant be released upon entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of two years. The applicant was also ordered to make reparation to the Commonwealth in the sum of $18,212.42 pursuant to s.21B of the Crimes Act 1914. The applicant now seeks leave to appeal against sentence upon three grounds: first, that the sentence was imposed on the basis of incorrect factual information; secondly, the learned sentencing judge gave no or insufficient consideration to the applicant's mental state, her personal circumstances and her plea of guilty; and, thirdly, that the sentence was manifestly excessive.
Briefly stated, the salient facts are as follows. The applicant has been in receipt of various forms of benefit from the Commonwealth since 22 June 1990 and, since 10 January 1994, she has been in receipt of a disability support pension in her own name. Notwithstanding that she was in receipt of that pension, the applicant lodged a claim on 22 April 1994 for a Jobsearch Allowance. She lodged the claim in the false name of Rosalind Ann Connelly. In support of her application and to establish her identity, the applicant produced a letter from the Jerrinja Local Aboriginal Land Council dated 18 April 1994 which appeared to have been signed by a Rhonda Ambrose (Secretary). The letter was actually composed and signed by the applicant. From 22 April the applicant received Jobsearch Allowance benefits in the name of Rosalind Ann Connelly. Each fortnight she submitted an Application for Continuation of Allowance form and was paid a benefit in the false name of Connelly. Payments continued until 22 August 1996 when the benefit was cancelled. On 2 May 1996 she provided a letter purportedly signed by S. Forbes as landlord in support of her claim for an additional benefit by way of rental assistance. Again this letter was composed and signed by the applicant.
The benefit in the name of Connelly was subsequently cancelled when information concerning the applicant's activities was received from a member of the public. The applicant was interviewed in relation to her Jobsearch Allowance claims in December 1996. She was co-operative and made full admissions. As a result of claiming the Jobsearch Allowance and rental assistance in the name of Connelly she was paid the sum of $18,562.30 in benefits to which she had no entitlement. As at the date of sentence the applicant had repaid $329.88, leaving an outstanding balance of $18,212.42.
I shall deal with the first ground. The applicant had admitted 41 prior convictions from two court appearances, the first at the Bairnsdale County Court on 7 December 1982 and the second at the Moe Magistrates' Court on 17 April 1989. On the former occasion the applicant had been convicted of false accounting and theft. On the latter occasion she had been convicted of knowingly or recklessly making a false statement and obtaining a benefit not payable, and similar offences. In the course of the plea the Crown had said:
"in relation to the matter on the second presentment involving the false statement claims, that was in fact a Social Security prosecution. The amount involved on that occasion was $23,362.50 so it was more substantial than the current matter before the court. ... By the time the matter had come to court there had been some substantial repayment, and the amount alleged in relation to the charges was some $13,000 at that stage."
In his sentencing remarks, his Honour had said:
"These last-mentioned convictions are particularly relevant and significant because they were for the same type of offences as these, only the sum received was larger, some $23,600-odd, of which some $10,000 was repaid by the time you faced the court, where you received a community-based order for 12 months with special conditions."
The respondent conceded that the relevant prior offence charged against the applicant concerned the sum of $13,954.30. In written submissions the respondent said:
"It is arguable that His Honour was inadvertently misled by the Crown submission and believed that the prior offence was committed in respect of the sum of $23,600-odd."
Having read what was said by the Crown on the plea and what was written by his Honour in his sentencing remarks, I am not, however, persuaded that there was any misunderstanding on his Honour's part of the true situation. Accordingly, I would reject the first ground. His Honour did not say at any point that the charges involved the larger sum. All that he said was that the sum received had been larger, being approximately $23,600, acknowledging that a sum of $10,000 had been repaid.
On the second ground, it was said that his Honour took insufficient account of (1) the applicant's mental state; (2) the applicant's personal circumstances; and (3) the applicant's plea of guilty.
The circumstances of the applicant were as follows. The applicant, who was born on 4 December 1950, had never known her biological father. Her mother, who had died in 1993, had been a highly respected member of the aboriginal community. The applicant had been raised on missions in New South Wales and at about the age of 13 years had made her own way to Western Australia. Later she had gone back to school, reaching about Form 4 level. She had had a number of unsuccessful marriages. She had married first at the age of 16 but the marriage had lasted only twelve months. She had married a second time in 1967 and, as her husband did not work, she was responsible for bringing in an income and raising two children. That marriage ended in the late 1970's. She married again in the early 1980's but that marriage also ended after twelve months. In 1982 she formed a de facto relationship with one Kevin Collins, a relationship which lasted up until May 1996 and for most of the period during which the present offences were committed. During the relationship she suffered from problems relating to alcohol and drug abuse, as well as addiction to gambling. She was also subject to abuse from Mr Collins as a result of his chronic intake and abuse of alcohol.
The applicant had stated, when the offences were investigated, that she had committed the offences because Collins had denied her access to her own disability support pension and that her addiction to drugs and alcohol and her gambling habit had occasioned a need for money. In mitigation of the offences, it was said on the plea that: "The defendant ... was basically a prisoner in her own home as a result of Mr Collins' behaviour. She also was drinking heavily ... and she also was reliant upon gambling". Evidence to this effect was given in support by a friend of the applicant who also swore that, since her relationship with Collins had ended, the applicant had made significant improvement in her management of alcohol, drugs and gambling. Medical and psychological reports were tendered which showed that the applicant had a long history of psychological problems and, in consequence, her condition had deteriorated over time. In a report dated 5 February 1998, Mr Ian Joblin said:
"I also noted in 1982 that if this lady was placed into circumstances 'of additional stress, she may become a more severe casualty'. It appears that this has, in fact, eventuated and she appears in my opinion as a very seriously psychologically disturbed person but not at this point psychotic. She has symptoms of a serious personality disorder which need addressing forthwith. She is depressed, suicidal, disoriented and despondent with little support in the community. All these are matters which need assistance and she also needs on- going regular contact with a mental health professional."
It was said, under the second ground, that his Honour had paid insufficient attention to the personal circumstances which I have outlined and to the psychological state of the applicant to which I have referred. It was also said that he had placed insufficient weight upon her plea of guilty. Each of these matters was, however, considered during the hearing of the plea. They were specifically referred to in his Honour's sentencing remarks, although, in the case of the applicant's psychological condition, perhaps not directly. What his Honour did was refer to all the reports which had been tendered and state that he had taken note of them. In this circumstance, it seems to me that, unless it is shown that the sentences were manifestly excessive, as the third ground maintains, it cannot be said that the sentencing judge gave insufficient weight to any of the matters relied upon under the second ground.
This leads me to the third ground. In fixing the penalty, the learned sentencing judge said:
"These crimes showed some degree of cleverness on [the applicant's] part because, apart from an obvious knowledge of the system of claiming benefits, the forged letter of 18 April 1994 purports to establish that Rosalind Ann Connelly could not read or write, thereby relieving [the applicant] of the task of actually filling in the necessary forms and hence revealing [her] true handwriting."
It has been submitted, none the less, that the non-parole period fixed by his Honour demonstrated manifest excess. It has been said that the sentence is beyond the permissible range, particularly when regard is had to sentences for social security offences imposed by the courts since September 1988. That claim is supported by a document entitled "Summary Of Sentences Imposed in Social Security Matters Dealt With On Indictment From 2 September 1988". It appears that, during the last nine years, courts in this State have imposed, virtually without exception, somewhat lesser penalties when regard is had to the non-parole period awarded to this applicant. I say "virtually without exception" because there is, it seems, one not entirely dissimilar case in which a total effective sentence of three years two months was imposed with a non-parole period of two years three months. That was, however, in relation to offences over a nine-year period involving a loss to the Commonwealth of some $210,000. The present case involved offences over an almost two-and-a-half-year period involving a loss to the Commonwealth of some $18,000. It is, I think, clear that, in setting the penalty for the applicant, the learned sentencing judge had regard to the fact that she had been convicted of very similar offences four years prior to her re-offending, and that on that occasion she had indeed been treated with some leniency. This was plainly a relevant consideration. But, bearing in mind the circumstances of this offender, which were unfortunate in the extreme, the circumstances of the offence, her contrition, her full co-operation with the authorities and her guilty plea, as well as a number of other matters to which I have already referred, I do not think that the circumstances justified so significant a departure from sentencing practices clearly revealed in the summary. The interests of general and specific deterrence would have been adequately fulfilled if a lesser non-parole period had been fixed.
Accordingly, I consider the application should succeed and the applicant should be released on her recognisance in the sum of $1,000 to be of good behaviour for a period of two years and three months after serving a period of some nine months' imprisonment. In all other respects the sentence previously fixed by the learned sentencing judge should remain the same.
WINNEKE, P.:
I agree, for the reasons given by Kenny, J.A., in the orders which she proposes.
I just want to say this. I have some sympathy for the way in which the learned judge disposed of this case having regard to the past offending of the applicant. There is a need, as his Honour said, to impose sentences which will reflect to like-minded people in the community that plundering the social security system will not be tolerated by the courts. The particular misfortune appears to have been that in the past, at least in this State, a pattern of sentencing has emerged for offences of this character in which, in general, and for offences of like character to those committed by the applicant, penalties far less than those imposed here have been imposed. Although sentencing statistics will rarely be of use to a court of appeal in determining whether a sentence in a particular application is manifestly excessive or inadequate, the Crown, in this case, provided to the judge a complete list of sentences imposed, over a period of years, upon persons who had been convicted of the same or similar offences as the applicant so that the Court would have a guide as to sentencing practices. But, when one peruses that list, which was before his Honour, it demonstrates, I think, with some clarity that the sentences imposed by the learned judge are significantly greater than those passed on other offenders both in respect of head sentences and minimum terms.
In the case of R. v. Omer (unreported, Court of Appeal, 14 February 1996), the Court remarked on the prevailing standards of sentences which have been imposed for offences of this character in this State, and indicated that:
"Parity in sentencing is not only a desirable objective in sentencing co-offenders but also where a pattern of sentencing for particular crimes can be established over a significant period. In sentencing different offenders for the same or similar conduct, such parity is also desirable."
(See: R. v. Barber (1976) 14 S.A.S.R. 388 at 389-90; Poyner v. The Queen (1986) 68 A.L.J.R. 616.)
These matters are not conclusive but are of significance in persuading me to the view that the sentence which his Honour imposed is manifestly excessive as to the minimum term imposed.
PHILLIPS, J.A.:
I agree that the application should be granted to the limited extent suggested by Kenny, J.A.
I would only add two comments. First, in relation to social security crime generally, I think that sometimes offending in this area is attended by particular considerations not generally present in crimes of dishonesty. Secondly, the usefulness of comparative statistics drawn from other cases is necessarily limited, as is surely demonstrated by the course of the argument before us.
I think it can be seen, independently of the statistics, that the sentence imposed in this instance was manifestly excessive, in that the circumstances personal to the offender in particular were such as to require a much lesser period of actual incarceration than two years.
Subject to that, I agree substantially with the reasons given by Kenny, J.A.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against sentence is allowed. The appeal is to be treated as having been instituted and heard instanter; it too is allowed.
We set aside the sentences imposed by the learned judge below and in lieu thereof we impose sentences as follows:
on count 1 - three years' imprisonment;
on count 2 - six months' imprisonment;
on count 3 - nine months' imprisonment.
We direct that all those sentences commence as of today. That therefore makes a total effective sentence of three years' imprisonment, but we direct that after serving a period of nine months' imprisonment the applicant is to be released upon entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of two years and three months.
We also confirm the order made below that the applicant make restitution in the sum of $18,212.42 pursuant to s.21B of the Crimes Act 1914 of the Commonwealth.
We declare that a period of 141 days has already been served by the applicant pursuant to the sentence which we have imposed.
As part of the order the Court is required to declare, pursuant to s.17A(2) of the Act, that this Court has decided that no sentence other than imprisonment is appropriate having regard to the nature of the offence, the applicant's role in its commission, her antecedents and the need to deter her and others from committing offences of the same or similar character. It is ordered that those reasons be entered in the records of the Court.
In coming to the conclusion that I have just announced, the Court has been conscious of and has taken into account the provisions of s.16G of the Commonwealth Crimes Act.
Ms Skuta, the order that I have just pronounced means that this Court has confirmed the head sentences imposed upon you by the judge below, which leads to a total effective sentence, as we sometimes call it, of three years - that is sometimes known as a head sentence as well, but what we have done is to order that after you have served nine months of that sentence you are to be released upon a recognisance of $1,000, by which you will acknowledge that you will be of good behaviour for the next two years and three months. That is the difference between the time that you will actually serve in prison and the term of the head sentence. Do you follow that?
APPLICANT:
Yes, Your Honour.
WINNEKE, P.:
The condition of your release is that you will be of good behaviour for two years and three months after you are released. Do you understand that?
APPLICANT:
Yes, Your Honour.
WINNEKE, P.:
You will be credited with the time that you have already served. You have done 141 days, which is four-and-a-half months or thereabouts, so that you are only going to have to serve another four-and-a-half months before you are going to be eligible for release. Are you prepared to enter into the recognisance that I have referred to?
APPLICANT:
Yes, Your Honour.
WINNEKE, P.:
I have to also tell you this. If you do not, without reasonable excuse, comply with the condition to be of good behaviour, you will stand to forfeit the $1,000 recognisance. Do you understand that?
APPLICANT:
Yes.
WINNEKE, P.:
In addition to that you may be brought back before the court, and the court before which you are brought back would have a number of options, including making you serve the rest of your prison term. Do you follow that?
APPLICANT:
Yes.
WINNEKE, P.:
So you must be of good behaviour for the two years and three months.
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