R v Wright and Commonwealth Director of Public Prosecutions

[1995] QCA 279

IN THE COURT OF APPEAL [1995] QCA 279

SUPREME COURT OF QUEENSLAND

C.A. No. 149 of 1995

Brisbane

[R. v. Wright]

THE QUEEN

v.

LESLEY JOY WRIGHT

Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

FITZGERALD P.
DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 16/06/1995
Judgment of the Court

APPEAL AGAINST SENTENCE ALLOWED. THE SENTENCE IMPOSED BELOW IS SET ASIDE AND IN LIEU IT IS ORDERED THAT THE RESPONDENT IS TO SERVE A TERM OF THREE YEARS IMPRISONMENT TO COMMENCE FROM TODAY, THE RESPONDENT TO BE RELEASED AFTER SERVING 12 MONTHS OF THAT SENTENCE UPON ENTERING INTO A RECOGNISANCE IN THE SUM OF $2,000 TO BE OF GOOD BEHAVIOUR FOR A PERIOD OF THREE YEARS FROM TODAY.

A CONVICTION IS TO BE RECORDED. THE SOLICITOR ACTING FOR THE RESPONDENT MUST, WITHIN SEVEN DAYS FROM TODAY, CAUSE TO BE EXPLAINED TO THE RESPONDENT IN ACCORDANCE WITH S.16F(2) OF THE CRIMES ACT, THE MATTERS THEREIN MENTIONED AND FILE WITH THE REGISTRAR OF THIS COURT AN AFFIDAVIT DEPOSING TO COMPLIANCE WITH THIS REQUIREMENT.

CATCHWORDS:	CRIMINAL LAW - SENTENCE: social security fraud; whether sentence manifestly inadequate; whether trial Judge paid sufficient regard to
deterrence and punishment.
Counsel:	Mr. A. J. Rafter for the appellant Ms. C. Holmes for the respondent
Solicitors:	Commonwealth Director of Public Prosecutions for the appellant Grasso Searles & Romano for the respondent

Hearing Date: 19 May 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 16th day of June 1995

On 15 March 1995 the respondent pleaded guilty before a

Judge of District Courts at Emerald to the following charge:
That between the 9th day of December 1985 and the 3rd day

of December 1993 at Mackay in the State of Queensland
she did defraud the Commonwealth.

On that same day the learned District Court Judge recorded a conviction for the offence and sentenced the respondent to a term of two years' imprisonment and directed that she be

released immediately upon entering into a recognisance in the sum of $500 to be of good behaviour for a period of three years from that day.

The Commonwealth Director of Prosecutions has appealed against the sentence imposed. The respondent is a mature woman born on 11 October 1953. She has a daughter who on 13 July 1994

was aged sixteen years. That daughter resided with her during

the whole of the period covered by the charge.

During that period the respondent received social security

in the form of a sole parent's pension. On 13 August 1984 she

applied for that pension and at that stage was entitled to it. She thereafter received the pension continuously until 3

December 1993. Reviews were conducted regularly and at each

review questions were asked of the respondent, including questions about the names and addresses of other occupants at

the address at which the respondent was residing and her

relationship to those persons. During the period covered by the charge the respondent and her daughter resided at Dysart. They resided with a man. In the review forms the respondent stated that she was residing with her brother-in-law and her sister and

that she was paying rent of about $40 per week. In actual fact she was residing with a man in a relationship which was in part sexual.

During about the last three years of the above period the applicant had regular employment. In the financial year ended 30 June 1991 she was paid $22,782 in her employment; in the year ended 30 June 1992 she was paid $15,419 and in the financial year ended 30 June 1993 she was paid $30,399.

The learned sentencing Judge was told that by 15 October 1993, for instance, the respondent was earning about $557 per week on average and as well was receiving a pension every fortnight of $317.30. Out of all that employment the respondent on a couple of occasions declared some casual income paid to her. Only once during the period from 11 May 1992 to 31 October

1993 did she claim to have worked and that was for about four

hours.

On 31 March 1994 the Department of Social Security raised against the respondent a claim for overpayment of $30,823.90 based on the fact of her employment alone and demanded payment

within fourteen days. This amount was paid on 8 April 1994.

On 13 July 1994 the respondent was interviewed by a

policeman and she admitted that she had resided with the man in

a "de facto relationship" for about eight years, that having commenced since she went to reside in Dysart. Other admissions were made to which it is unnecessary to refer. Because of the admissions of the de facto relationship the Department of Social Security reassessed the total overpayment at $73,165.55 which included the above $30,823.90. The balance was demanded and

paid. The learned District Court Judge was told that the total

of both payments had been lent by the man with whom the respondent was living and that a written agreement, drawn by a solicitor, had been signed by the respondent obliging her to repay the debt.

In the interview with the police on 13 July 1994 the respondent said that she had wholly and solely supported herself and her daughter, that the house was rented from the man's employer, BHP, at a rent of $10 to $12 per week, that that house was regarded as married quarters as compared to single quarters for the man as an employee, that the man had paid the

electricity accounts and that she had paid the telephone bill, the telephone being in her name. She said that before she

commenced working she used all pension moneys to pay her daughter's living expenses and for clothes for herself and

daughter. She said the man with whom she was living paid for

food for members of the household and once the respondent began

working she commenced to pay $80 per week for food for herself
and her daughter.

The appellant argues that the learned sentencing Judge erred in having excessive regard to the repayment to the Commonwealth of the moneys obtained by her as the proceeds of

her offence, that he paid insufficient regard to the importance

of the deterrent aspect in cases of this kind, that he erred in paying insufficient regard to ensure that the respondent was adequately punished for her offence and that the sentence imposed was manifestly inadequate.

In his sentencing remarks the learned sentencing Judge said

this:
"I have listened very carefully to the circumstances placed

before me and the case does have one unusual feature.
You may not realise it, but many of these cases
involving social security fraud are very sad cases and
for that reason very often when the sentences are
imposed a period of imprisonment is imposed and then
the person is the subject of an order that means that
they are released after serving two to six months of
the sentence imposed. In your case from what I have
been told although you were living with Mr . . . in a
de facto relationship, to a large extent that
relationship was such that you were financially
separately responsible for many of your own expenses
and the expenses of your daughter and Mr . . . was
not prepared to financially support your daughter.
That is unusual because to some extent it meant that
although you were in a de facto relationship and
receiving some financial support from . . . he did not

provide to you perhaps the full financial support that

one would see in a normal relationship."

In our respectful view, while it may have been perfectly

true to say that, from a purely financial point of view the man

did not provide a large amount of financial support, he did

provide support in one very important respect namely a roof over

the head of the respondent and her daughter, albeit at very

cheap cost. The statement by the respondent to the police also showed that the man contributed to the daughter's food costs until about the time the respondent began work.

In our view the learned sentencing Judge did pay

insufficient regard to the need to provide a deterrent sentence

and that failure led him into error.

In the respondent's case, the fraud continued over almost eight years. There was in our view a high element of deceit and one which any bystander, knowing the facts, would describe as appalling. The respondent consistently bled the public purse of moneys to which she was not entitled and further, for some three years towards the end of this eight-year period she not only

received the sole parent's pension but received income from her

employment.

What employment she did declare to the Department was a

pittance compared to the time she actually worked.

The present case is an illustration of greed and a

determination to defraud the Commonwealth persisted in for the

whole of the eight-year period. During this period there were regular fraudulent statements made to the Department. The picture painted by her to the Department was that she lived with

her sister and brother-in-law and had worked on a few occasions.

We should here say that the respondent told the police that she believed it was not until late in this eight-year period that the man she lived with first knew that she had received the

sole parent's pension and then only because she told him. She said that when she told him this he (to his credit) said, "You'd better tell them," but she never did.

The need for deterrence in this type of case must be

restated. In Holdsworth (CA No. 94 of 1993) Pincus JA and

Thomas J said (at p.4):
"It would be surprising if defrauding the Commonwealth of

significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught. Any notion that the Commonwealth and its departments are fair game for this type of activity is to be resisted."

In Oag (CA No.73 of 1993) the Court of Appeal said:

"The major factor in favour of a custodial sentence is the need for deterrence, especially since the effective operation of the social security system is largely dependent upon the honesty of those who benefit. The Court was told on behalf of the respondent that offences such as those committed by the applicant are prevalent and are difficult and costly to detect."

Ms. Holmes for the respondent argued that the fact of reparation by the respondent is a matter which the learned sentencing Judge was entitled to take into account with the effect that it could counterbalance the need for deterrence.

In our respectful view this argument fails. Section 16A of

The Crimes Act 1914 sets out matters which the legislature says

are those to which the court is to have regard when passing

sentence. Sub-section 16A(1) reads:
"In determining the sentence to be passed or the order to

be made in respect of any person for a federal offence a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence."

Sub-section 16A(2) commences:

"In addition to any other matters, the Court must take into account such of the following matters as are relevant and known to the Court . . ."

The matter of contrition shown by making reparation is then

mentioned as also is the deterrent effect that any sentence or
order under consideration may have on the person.

If Ms. Holmes' view is correct, it seems to us that an offender with sufficient means, could, in a serious case such as the present one, by making full reparation avoid being sent to

gaol. The respondent's offence was a serious one. Reparation

is material (generally at least) but in the present case does not justify a departure from the usual custodial sentence. In our respectful view the sentence imposed was manifestly inadequate and this court should intervene. Persons minded to

defraud as this respondent did need to know that actions of this

kind will be met with condign punishment. We would allow the

appeal and set aside the sentence imposed. We would record a conviction for the offence. We would sentence the respondent to a term of three years' imprisonment commencing from today and order that she be released after serving twelve months of that sentence upon entering into a recognisance in the sum of $2000 to be of good behaviour for a period of three years from today.

We would require that the solicitor acting for the respondent
do within 7 days cause to be explained to the respondent in

accordance with s.16F(2) of The Crimes Act the matters therein mentioned and file with the Registrar of this Court an affidavit deposing to compliance with this requirement. We further state

that we are satisfied that no other sentence is appropriate in

all the circumstances of this case.