R v Willard

[2001] NSWCCA 6

Reported Decision: 120 A Crim R 450

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Willard [2001] NSWCCA 6
FILE NUMBER(S):	CCA 60005/2000
HEARING DATE(S):	8 December 2000 2 February 2001
JUDGMENT DATE:	2 February 2001
PARTIES :	Crown - Respondent Michelle WILLARD - Applicant
JUDGMENT OF:	Simpson J at 1; Dowd J at 51

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0296
LOWER COURT JUDICIAL OFFICER :	P R Bell DCJ

COUNSEL :	L M B Lamprati - Crown P J D Hamill - Applicant
SOLICITORS:	S E O'Connor - Crown Mark Morris - Applicant
LEGISLATION CITED:	Criminal Procedure Act 1986 Sentencing Act 1989
CASES CITED:	R v Scullion, unreported NSWCCA 15 July 1992 R v Munday (1981) 2 NSWLR 177 R v Cartwright (1989) 17 NSWLR 243 R v Gallagher, unreported NSWCCA 27 August 1991 R v Thomson and Houlton [2000] NSWCCA 309 R v Edwards (1996) 90 ACrimR 510 R v Worth (1976) 14 SASR 291 R v Boyle (1987) 34 ACrimR 202 R v T (1990) 47 ACrimR 29 R v Adami (1989) 51 SASR 229 R v Spruce unreported NSWCCA 18 October 1990 R v Toomalati [2000] NSWCCA 105, 22 March 2000 R v Tiki unreported NSWCCA 24 August 1994 R v Day (1998) 100 ACrimR 275 R v Wright (1997) ACrimR 48, 28 February 1987) R v Letteri unreported NSWCCA 18 March 1992] R v Engert (1985) 85ACrimR 67 Dinsdale v The Queen [2000] HCA 54
DECISION:	Leave to appeal granted, appeal dismissed. Formal orders dismissing the appeal deferred.

IN THE COURT OF
CRIMINAL APPEAL

60005/00

SIMPSON J
DOWD J

Friday 2 February 2001

REGINA v Michelle WILLARD

Judgment

SIMPSON J :

1 The applicant seeks leave to appeal against a sentence imposed upon her on 15 December 1999 by Judge PR Bell in the District Court at East Maitland following her pleas of guilty to two charges of attempting to obtain money by deception. The applicant asked that an additional offence of attempting to obtain financial advantage by deception be taken into account pursuant to s 21 of the Criminal Procedure Act 1986.

2 Pursuant to ss 178BA and 344A of the Crimes Act 1900, the applicant was exposed to a maximum penalty of imprisonment for five years in relation to each of the charges to which she pleaded guilty. Taking into account the matter on the Form 2, Judge Bell sentenced the applicant to two concurrent terms of twelve months imprisonment, divided into minimum terms of four months and additional terms of eight months. In doing so he found that there were special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 warranting departure from the conventional division of the sentences. The special circumstances concerned psychiatric and psychological evidence as to the applicant's mental and emotional state, to which it will be necessary to refer in due course.

3    All three offences were committed over a short period in August 1998. The applicant was the beneficiary named in two insurance policies taken out on the life of her husband Michael Willard. One was issued by the AMP Insurance Company and the other by Australian Casualty & Life Insurance, operating under the name National Mutual. On 17 August 1998 the applicant contacted AMP and stated that her husband had been killed in a mining accident on 27 July 1998. She said that she wished to make a claim on the policy. AMP sent the necessary claim forms to her and she completed them and returned them to the Insurance Company.

4    One of these was a document entitled "Death Claim Discharge", the signature on which was witnessed by a solicitor whom the applicant had not previously retained. The applicant had been told that a death certificate would be required by AMP and this she did not have available. This was because it was false to say that her husband had been killed. He was very much alive. As a substitute for the required death certificate, the applicant used a medical pad she had previously stolen from her general practitioner Dr Robert Mowbray to forge a medical certification of death.

5    Thereafter she contacted officers of AMP on a regular basis requesting that her claim be processed urgently and representing that she was in extreme financial difficulties as a result of the death of her husband. She claimed to have applied to the Registrar of Births, Deaths and Marriages for an official certificate but to have been told that there was a problem with the records.

6    Ms Papas who was handling the matter at AMP suggested that she obtain a certificate in correct form from Dr Mowbray, but the applicant told her that Dr Mowbray was overseas. She engaged in an elaborate pretence, referring to difficulties she said that the children were having and saying that she could not obtain alternative verification of the death from the organisation who arranged the funeral, because that had been arranged at the instigation of her husband's parents, with whom she was not then on good terms.

7    The applicant's requests to AMP continued until at least 22 September. Her representations to one of the employees handling her claim were so convincing that the employee herself was in tears.

8    AMP employees fairly quickly became suspicious about the applicant's claim and made independent checks with the Registrar of Births, Deaths and Marriages and Dr Mowbray. As a result, no money was paid on the claim and the attempt to obtain the money failed.

9    The applicant made a similar attempt to obtain the benefit of an insurance policy issued by National Mutual. This policy she had taken out only a few days earlier. Her attempts began on 30 July 1998. The applicant spoke to a sales adviser called Brian Chapman and told him a similar story to that she had told AMP employees. Again she went into elaborate detail about the distress she and her children were experiencing. She also claimed to be in need of a sum of money to pay to a financial adviser whom she named as Peter Gain. She claimed AMP had paid out her claims on the policy issued by the company.

10    On 31 July she sent a handwritten letter by facsimile to Mr Chapman purporting to describe the circumstances of her husband's death and giving the name of solicitors she said were representing her. From early August 1998 she dealt with a sales manager called Paul Robinson, to whom she made at least four telephone calls. She again claims to have received money from AMP and said that AMP had not been as demanding in seeking information as National Mutual. She complained about the conduct of the solicitor who she said had treated her cruelly and caused her distress.

11    On 28 October an investigator telephoned the applicant, who told him that the claim was a mistake, that a person who had been living with the family had tried to make a claim on the policy and that her husband was alive and well and that she had private investigators looking at the matter.

12    The details of the offence on the Form 2 are not entirely clear. However, it appears that that offence was committed in association with the others. The applicant approached Mr Peter Gain, who was not a financial adviser but a car salesman, and signed a contract for sale of a second-hand Jeep Cherokee for a sum of just under $25,000. She initially told Mr Gain that she was expecting money from the sale of AMP shares. She arranged for Mr Robinson from National Mutual to advise Mr Gain in writing of the existence of the insurance policy, that the sum insured was $200,000 and that National Mutual expected that that amount would be paid to Mr Willard's family. On that basis Mr Gain released the jeep into the applicant's custody. After a number of fruitless attempts to be paid, Mr Gain repossessed the jeep on 28 August 1998. Nevertheless the applicant continued to make representations to Mr Gain about her expectation of receiving funds from various sources. The foregoing account illustrates the elaborate lengths to which the applicant went in this criminal enterprise.

13    Before turning to the grounds raised on the application for leave to appeal, it is convenient to consider the applicant's subjective circumstances. She was born on 10 March 1967. She was 31 years of age at the time she committed the offences. She has a record of offences of dishonesty. In 1985 at the age of 18 she was dealt with in the Children's Court on ten counts of false pretences. A year later in 1986 she was again convicted of a charge of false pretences and one of stealing. On the false pretences charge she was given the benefit of a deferred sentence and on the stealing charge she was required to perform 200 hours of community service. At the same time she was convicted of another 17 counts of false pretences, on each of which she was sentenced to the rising of the court and required to pay compensation, in total, of $615.

14    In 1990 she was convicted of stealing and of making a false statement with intent to obtain financial benefit. In 1991 she was convicted of stealing and in 1994 she was convicted on eight counts of passing cheques not met on presentation. On each occasion she was given the benefit of noncustodial penalties. She has never previously been sentenced to a term of imprisonment.

15    The applicant plainly lives in a supportive and loving relationship with her husband and children. Although her husband did not attend court for sentencing, he wrote a letter for presentation to the court. He said that about 12 months previously the applicant had suffered severe depression, had become very moody and upset and that the family had had a very tough few months. He said she had been having quarterly contraceptive injections, but had received medical advice to cease this form of contraception. On medical advice the applicant had a tubal ligation.

16    He said that she is a good mother and wife, the children rely heavily upon her and that he would hate to think how he would cope without her. He said her absence would destroy the children and himself. He recognised that the applicant required counselling and psychological help. He expressed confidence in her rehabilitation.

17    The applicant's children were born in May 1989, March 1992 and November 1995. At the time of sentencing they were therefore aged ten, seven and four years.

18    The applicant gave evidence in the sentencing proceedings. Of her early history she said she was one of three adopted children and maintained contact with her adoptive parents. They were aware of the charges. She said they were sad about her predicament and had advised her to seek psychiatric help. She expressed regret about the impact on them of her criminal behaviour. She could not explain why she committed these offences, saying her husband is a loving and caring person who works hard and provides well for the family. She said not a day goes by that she does not reflect upon and regret her behaviour. She said she had consulted a psychologist and a social worker, both of whom furnished reports for the court. I turn now to those reports.

19    The applicant consulted Dr Anthony Nicholas, a psychologist, in August 1999. His opinion was that the applicant's behaviour was erratic and irrational, because, as she lived in a country town, it was unlikely that she could succeed in her enterprise. He considered that the applicant is emotionally volatile and immature and that her behaviour probably resulted from a personality disorder. He thought she was genuinely remorseful and contrite and, having regard to her prior criminal history, required psychotherapy and support counselling.

20    The applicant was referred by Dr Mowbray to a social worker, Ms Jane Collins, in February 1999. This was two days after being interviewed by police. Ms Collins noted that the applicant had attended for counselling on three occasions, but had cancelled on three other occasions. She reported mood swings over the previous twelve months. Ms Collins accepted the applicant's own assessment that she needed on-going counselling and support.

21    In addition to these reports there was a psychiatric report written by Dr Graham Vickery, who found no evidence of clinically significant anxiety state, major depressive disorder, paranoid ideation, psychotic phenomena, thought disorder or impaired gross cognitive function. He thought her prognosis was poor in view of the entrenched nature of her behaviour. He said she was in a state of denial and was unable to show insight into her behaviour. In a subsequent report he said that the applicant would not benefit from psychiatric treatment, but suggested cognitive behaviour therapy. It seems Dr Nicholas would be in a position to provide such treatment.

22    On the day the application for leave to appeal was listed, counsel for the applicant advised the court that there had been "a development". The Crown had very fairly advised him only that morning that the applicant, while in prison following sentencing, had come into possession of information potentially useful in the prosecution of other offences unrelated to her. She volunteered the information to the prison authorities and agreed to give evidence if requested to do so. Her agreement to give evidence came after she had been released on bail pending appeal and in circumstances, the Crown conceded, that did not suggest that she had done so for the purpose of obtaining any advantage for herself.

23    The provision of this information to the applicant's legal advisers brought about a significant change in their approach to the application for leave to appeal against the sentence. Counsel for the applicant urged that her cooperation with police came within the description of "fresh evidence" that this court could take into account, not only in the event that it identified error in the sentencing process and proceeded to resentence, but as itself the basis for allowing an appeal and resentencing. That is, counsel urged, in effect, that the applicant's cooperation, unrecognised in the sentencing process for the obvious reasons that it had not then been given, itself established sufficient error to enable this court to intervene.

24    It is not in contest that it is open to this court to have regard to the applicant's subsequent cooperation in resentencing, if error is otherwise established. The salient feature of this evidence is that it relates to events that postdate sentencing. It is generally and almost universally accepted that post-sentence events are not available to be taken into account for the purpose of establishing that, at the time of sentencing, some other sentence should have been passed. As a matter of logic, that proposition appears to me to be incontrovertible.

25 However, in the short time available to him, having in mind that counsel only became aware of the applicant's assistance on the morning of the hearing, he was able to produce authority that was apparently contrary to that proposition. This was the decision in R v Scullion, unreported, per Clarke JA, McInerney and SullyJJ, delivered on 15 July 1992. In that case Clarke JA noted the general rule which I have already stated and extracted passages from judgments in R v Munday (1981) 2 NSWLR 177 and others. There were:

“It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong., was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the province of the executive Government and not of an appeal court.” ( Munday , p 178)
“Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this Court: R v Munday (1981) 2 NSWLR 177, at 178. That particular principle has been applied directly to the situation where, as it claimed to be the situation in this case, a prisoner continues to give significant assistance to the authorities after the sentence has been imposed and where that assistance had not been anticipated by the sentencing judge.” R v Cartwright (1989) 17 NSWLR 243 at 257.

26    Clarke JA also referred to R v Gallagher (NSWCCA, 27 August 1991, unreported) in which Gleeson CJ had observed that post sentencing assistance may be relevant to an appellate court on resentencing, but not to the correctness of the original sentence.

27    However, Clarke JA went on to say:

"The rule is not, however, an absolute one, for in exceptional circumstances the courts have had regard to events which have occurred since sentencing in considering the question whether an appeal against a sentencing order should be allowed. Nonetheless the courts which have taken post-sentencing facts into account have been at pains to make it clear that it will only be in rare and exceptional cases that the court will be entitled to have regard to these facts."

28 At the time of the earlier hearing of this application, 8 December 2000, this court was referred to that passage, which appears to lend some support to the argument advanced on behalf of the applicant. As what was being urged upon the court involved a major departure from established practice and orthodoxy, and as Clarke JA’s observations had not been adopted by other members of that court, McInerney and Sully JJ, it was clearly inappropriate that the matter be determined by a bench of only two judges. The Chief Justice had previously issued a direction under the provisions of the Criminal Appeal Act that this application be determined by a bench so constituted.

29    The matter was accordingly adjourned to enable the Chief Justice to consider whether it should be determined by a bench of three. During the adjournment, however, it was possible to read the whole of Clarke JA’s judgment. That made it plain that, whether or not the passage already quoted should be accepted as correct, it can have no possible bearing on the outcome of the present case. That is because later in the judgment Clarke JA said:

"On the other hand, it is apparent from Cartwright that evidence that an appellant has given significant assistance to the authorities after being sentenced, is not admissible in determining whether the sentence should be set aside, notwithstanding that the assistance had not been anticipated by the sentencing judge."

30    His Honour went on to conclude that similar evidence in that case should not be used as support for establishing error in the sentencing process. That being so, there was no issue requiring the convening of a bench of three judges. All of this was conveyed to the Chief Justice, who unsurprisingly found it unnecessary to revoke the direction earlier given. The court as originally constituted reconvened today to complete the hearing of the application.

31    I am satisfied that the applicant's post-sentencing assistance is not available to be taken into account on the question of whether there was any error in the sentencing process or whether this court should intervene and proceed to resentence. Establishment of error is fundamental to the court's jurisdiction to resentence. I am equally satisfied that that material would be available to be taken into account for resentencing purposes if, but only if, error is otherwise established. The appropriate course, should error not be established, is for the executive to be requested to intervene in response to the applicant's assistance.

32 It is necessary now to turn to the grounds of the application originally advanced to determine whether any error has been shown. A number of grounds were advanced in support of the application. Firstly, it was submitted that the sentence failed to accord due recognition to the applicant's plea of guilty. By s 22 of the Crimes (Sentencing Procedure) Act 1999, the benefit traditionally given in relation to a plea of guilty has been made a statutory requirement.

33 Counsel referred to the decision of this court in R v Thomson and Houlton [2000] NSWCCA 309 in which a discount ranging from 10 to 25 per cent for the utilitarian value alone of a plea of guilty is suggested. It was argued that the sentencing judge did no more than record that the plea of guilty had been entered. The benefit to which the applicant was entitled was at the lower end of the scale, because the Crown case against her was, in truth, unanswerable. True it is that his Honour did not quantify the discount he gave the applicant, as judges are post Thomson encouraged to do, but this is hardly surprising and is not an error because sentence was imposed before publication of that judgment.

34    This complaint, like the others to which I will shortly come, has to be assessed in the light of the sentence that was in fact imposed. It was in my view a remarkably light sentence. There is not the slightest reason to consider that the sentencing judge failed to give due weight to the applicant's plea of guilty.

35 The next matter argued was that the judge failed to take account of the evidence of the effect of her incarceration upon her children. I have already referred to the letter from her husband in which he expressed the view that incarceration would destroy the children as well as himself. There is a threshold difficulty in the submission. Before such hardship can be taken into account for sentencing purposes, it is necessary that the circumstances be highly exceptional, see R v Edwards (1996) 90 ACrimR 510; R v Worth (1976) 14 SASR 291; R v Boyle (1987) 34 ACrimR 202; R v T (1990) 47 ACrimR 29; R v Adami (1989) 51 SASR 229.

36    Reference was made to decisions of this court in which the care of young children has been categorised as constituting exceptional hardship. I will come to these shortly.

37    It is necessary now to examine the evidence, apart from the passage in the applicant's husband's letter to which reference has already been made, that established hardship to the children. Mr Willard's employer, Mr AH Bell, wrote a letter saying employees from the company were from time to time required to work away from home for varying periods of time and that Mr Willard had been sent on 26 November to a mine in Queensland where he was expected to remain until about 22 December.

38    There was also evidence from the applicant that she had arrived at Court alone with her eight year old child. Her parents were not present and neither were her husband's parents. That left open a potential question about the availability of carers for the children. However, there was no evidence, apart from inference, that there was nobody available to care for the children.

39    The cases to which reference was made on behalf of the applicant in which exceptional hardship to children is found to warrant the extension of leniency were of course all cases decided upon their own facts. In R v Spruce, unreported, NSWCCA18 October 1990 (Gleeson CJ, Mahoney JA and Studdert J) the applicant had the sole care (her husband having been convicted and imprisoned at the same time as she was convicted) of two young children, one of whom, a nine year old, had suffered serious trauma and had special need for care. Further, there was a long unexplained delay in bringing the appeal on for hearing.

40 In R v Toomalati, [2000] NSWCCA 105, 22 March 2000, the respondent to a Crown appeal was a single mother with four children ranging from nine years to one year old. They had no contact with their father. There were other exceptional circumstances relating to the respondent herself which added to the hardship of the children which led the court to conclude that that deferred sentence was not manifestly inadequate in the circumstances.

41    In R v Tiki unreported, NSWCCA 24 August 1994 (Finlay and James JJ) the applicant was the mother of a child less than 12 months old, the father of whom played no part in the child's life. The child had very poor health, having had one operation, expecting to undergo another and having suffered from glandular fever. James J, with whom Finlay J agreed, concluded that those circumstances were exceptional.

42 By contrast, the Court in R v Day (1998) 100 ACrimR 275, concluded that exceptional hardship was not shown in the case of a sole father of three children aged 15, 13 and 12 to whom alternative, if not optimal, care was available.

43    I am not persuaded that this is a case in which exceptional hardship to children should have been found. As has frequently been recognised in the cases, imprisonment of a parent almost invariably amounts to hardship to children or families and this case is, as I perceive it, not out of the ordinary. Parenthood is not a licence to commit crime.

44    A related matter raised by counsel for the applicant concerned remarks made by the sentencing judge in the context of considering the questions relevant to the applicant's family. This occurred during the course of the applicant's evidence when she was asked by her legal representative about having arrived at court with the eight year old and with no other adults. His Honour intervened and asked where her adopted parents were and subsequently made it plain that he considered that this evidence was elicited from the applicant as a form of pressure brought to bear on him not to impose a custodial penalty. Indeed, it was submitted that his Honour's questioning and discussion during this period was aggressive. It was put that his Honour misinterpreted the question asked by the applicant's legal representative as designed to pressurise him by reason of the absence of any adult to look after the eight year old or the other children.

45    Counsel for the applicant pointed out that the passage is at least equally susceptible of the alternative interpretation that what the legal representative was seeking to do was to add support by concrete illustration to the description of the applicant in the psychological material as a person who refused or failed to face up to her problems. I accept that this alternative explanation is open, but in my opinion it is necessary to look at the remarks on sentence to determine whether his Honour made any error of fact in the approach he took and, in my view, no such error can be discerned.

46    There are some other observations made by the judge in the remarks on sentence about which complaint was made. These concerned the applicant's failure to tell the husband's parents about the charges. His Honour regarded this as "demolishing the applicant's claim that she was coming to grips with her problems and subsequently moving towards rehabilitation". This also was said by his Honour in the course of questioning the applicant when she gave evidence. It was not an unreasonable observation. His Honour was not obliged to accept at face value what the applicant said about her rehabilitation.

47    The third matter raised was that the sentencing judge failed to give adequate weight to the psychological and psychiatric evidence. His Honour dealt with this in the remarks on sentence relatively briefly, saying he had endeavoured to understand what lay behind the applicant's behaviour and referring briefly to the psychological evidence that the behaviour resulted from personality disorder. He quite rightly said this was of little assistance in understanding the matter.

48 I do not think his Honour was in error in this approach. The evidence was not such as would, on the basis of authorities such as R v Wright (1997) ACrimR 48, 28 February 1987, R v Letteri (unreported, NSWCCA 18 March 1992, Gleeson CJ, Sheller JA and Badgery-Parker J , R v Engert (1995) 85 ACrimR 67 and others permit a reduction of emphasis on questions of general deterrence.

49 The final matter referred to was that principle of sentencing that full-time incarceration is a punishment of last resort, most recently affirmed by the High Court in Dinsdale [2000] HCA 54. There was evidence before his Honour in the pre-sentence report that the applicant was suitable for supervision by the Probation and Parole Service, although that assessment was made only with some reservation. A community service order was not available by reason of the applicant's place of residence, and she was assessed as being not suitable for periodic detention, although no explanation was given for that unsuitability.

50    In any event the applicant really had exhausted the leniency that the criminal justice system could reasonably afford to her. This was, after all, not her first foray into fraudulent activity. On this occasion it was a most sustained and determined effort over an extended period of time to obtain money to which she was not entitled. The facts that it was an unusual, even rather bizarre attempt, and that it was doomed to failure, do not save her from the consequences of her endeavours. In my opinion the sentence imposed was the minimum that could reasonably have been imposed in the circumstances and no error has been demonstrated. I would grant leave to appeal, but dismiss the appeal.

51    DOWD J: I agree with the proposed orders and her Honour's reasons there for.

52    The orders of the court will be as I have proposed. Formal orders dismissing the appeal deferred.

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