Smith v Benson

[2010] QDC 189

DISTRICT COURT OF QUEENSLAND

CITATION:	Smith v Benson [2010] QDC 189
PARTIES:	CHRISTINA STORME SMITH
(Appellant)
V REBECCA JANE BENSON
(Respondent)
FILE NO/S:	D8/2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING  COURT:	Emerald Magistrates Court
DELIVERED ON:	22 April 2010 (ex tempore)
DELIVERED AT:	Emerald
HEARING DATE:	22 April 2010
JUDGE:	Irwin DCJ

ORDER:	1.	Appeal against sentence allowed
2.	Sentence imposed at first instance varied by deleting the part of the order that the defendant be released after serving 1 month of the sentence and instead, order she be released forthwith

CRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – GROUNDS FOR
INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR INADEQUATE – where the appellant
pleaded guilty and was convicted of two summary offences
of obtaining a financial advantage, namely social security
payments, for herself from the Commonwealth knowing or
believing that she was not eligible to receive the financial
advantage – where the offending was a continuous course of
conduct, but there were two charges due to a change in the
offence provisions – where the charges arose out of the
appellant’s failure, during a period of 103 fortnights over
almost four years, whilst in receipt of a disability pension, to
declare her and her husband’s income – where the total
overpayment due to the appellant’s conduct was $28, 813 –

where the appellant was sentenced to twelve months

1-1

imprisonment, to be released after serving one month upon

entering into a recognisance in the sum of $2,000,	1
conditioned that she be of good behaviour for a period of two
years, and subject to probation for a period of 12 months –
where there was evidence that the appellant had been treated since 2003 for depression and post-traumatic stress disorder and had been referred to a psychiatrist regarding this – where
there was psychological evidence that it was likely, if the
appellant were significantly depressed, her ability to attend
her Centrelink obligations would have been impeded – where	10
there was psychological evidence her “somewhat precarious state of mental health” would be likely to be jeopardised if she was sent to prison – whether the sentence imposed was manifestly excessive
Crimes Act 1914 (Commonwealth), s 21B, s 16A(2)(m)
Criminal Code Act 1995 (Commonwealth), s 135.2 (1)
Andersen v The Commonwealth Director of Public	20
Prosecutions, Appeal No 4060 of 2005, 23 May 2006, considered
Du Randt v R [2008] NSWCCA 121, considered
Groundwater v Arthur, Appeal No 21 of 2008, 7 March 2008, considered
House v The King (1936) 55 CLR 499, applied	30
Leach v R [2008] NSWCCA 73, cited
Lowndes v The Queen (1999) 195 CLR 665, applied
Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited
R v Clark [2009] QCA 361, cited
R v Holdsworth, CA No 94 of 1993, 22 June 1993,	40
considered R v Hurst [2005] QCA 25, considered
R v Israil [2002] NSWCCA 255, cited
R v Oag [1993] QCA 225, considered
Rosales v Carstens, No D389 of 2004, 6 September 2005,
considered	50
Smith v Spiers (1995) 84 ACrimR 44, considered
R v Tacey, 6 Court of Appeal, Queensland, 2 March 1994, considered
R v Verdins [2007] VSCA 102, cited

2 ORDER 60

R v White, CA No 411 of 1986, 3 April 1987, considered

1

Weetra v Beshara (1987) 46 SASR 484; 29 ACrimR 407, cited

COUNSEL:	S. J. Hamlyn-Harris for the appellant
S. Gibbs for the respondent

10

SOLICITORS:  Charles Lumsden Lawyers for the appellant
Director of Public Prosecutions (Cth) for the respondent

20

30

40

50

3 ORDER 60

HIS HONOUR: This is an appeal by Ms Smith against the

1

sentence imposed by an Acting Magistrate at Emerald for two summary offences under section 135.2(1) of the Commonwealth Criminal Code of obtaining a financial advantage, namely
social security payments from the Commonwealth, knowing or

believing that she was not eligible to receive that financial	10
advantage.
The first charge was for the period between 12 March 2003 and
27 September 2004, and the second charge was for the period
between 28 September 2004 and 12 February 2007. As the Crown	20
Prosecutor explained, the offending was a continuous course of conduct, but there were two charges due to a change in the offence provisions; in effect, there was one offence.
The maximum penalty for this offence is 12 months imprisonment	30
and/or a $6,600 fine. The appellant pleaded guilty to these
offences on 28 October 2009. The Acting Magistrate ordered
that she be convicted and sentenced to 12 months imprisonment,
to be released after serving one month upon entering into a
recognisance in the sum of $2,000, conditioned that she be of	40
good behaviour for a period of two years and subject to probation for a period of 12 months.
The probation order included a special condition that she
submit herself to such medical, psychiatric or psychological	50
treatment as directed by a community Correctional Officer.
She was further ordered under section 21B of the Crimes Act to
pay reparation of $28,813.

4 ORDER 60

The appeal is brought under section 222(2)(c) of the Justices
Act 1886 on the ground that the sentence is manifestly
excessive. Before an appellate Court will interfere with the
exercise of the sentencing discretion, the appellant must

demonstrate that the judicial officer acted upon a wrong	10
principle, allowed extraneous or irrelevant material to guide or affect him or her, mistook the facts or did not take into account some material consideration: House v. R (1936) 55 CLR 499 at 504-505.
20
It is therefore relevant to consider whether the sentence appealed against was outside the sound exercise of the sentencing Court's discretion: Parry v. Mayfield Holdings (Qld) Pty Ltd (2006) QDC 250.
30
As has been emphasised by the High Court in the joint
judgement of the seven Justices in Lowndes v. R (1999) 195 CLR
665 at 671, a Court of Appeal is not entitled, even if it
might not itself have imposed the same sentence, to overturn a
sentence imposed in the primary Court unless it can be	40
demonstrated that the sentence is manifestly excessive.
The appellant was 45 years at the time of the sentence. She
was aged between 38 and 42 years at the time of the offending.
She is married and has three children who were all dependants	50

during the charge period. The charges arise out of the
appellant's failure, during a period of 103 fortnights, whilst
in receipt of social security benefits, to declare her own and
her husband's income correctly to Centrelink. 5 ORDER 60

1

Due to the amount of the appellant's and her husband's income, she had a partial entitlement to benefits during 59 fortnights and a nil entitlement in 44 fortnights. This is a period of

almost four years.	10
During the period of the charges, the appellant was receiving a disability support pension. She applied for the payment on 16 March 2001 and received the payment continuously from then until the end of the charge period. She had received	20
Centrelink benefits continuously from 1996, having received a parenting benefit until she commenced on the disability support pension.
A recipient of a disability support pension is not required to	30
lodge regular continuation forms. Centrelink does, however,
periodically send to recipients benefit letters, which set out
various matters, including a reminder of the person's
obligations, including that if the person's personal
circumstances change, they must advise Centrelink of that	40
change within 14 days.
Centrelink uses the information supplied by the recipient in
response to these reminder notices to assess the correct rate
of benefits to be paid to the recipient. If no declaration is	50

made, Centrelink uses the information supplied on the original
application form to assess the rate of benefits payable.
In this case, Centrelink records indicate that a number of 6 ORDER 60

1

these notices were sent to the appellant during the charge
period at the address which she last indicated to Centrelink
was her postal address. It was not suggested on her behalf

that these notices were not received.

10

The offences were detected by a data match with the ATO.
During the charge period, the appellant and her husband were employed. She was employed as a casual milk delivery person from 3 March 2003 until 18 January 2005, and again from 28

October 2006 to 20 January 2007. Her husband was employed by	20
the same company from 27 June 2003 to 18 January 2005. He worked on a fulltime basis for Centre Hire and Contracting from 24 January 2005 until the end of the charge period.
In August 2004, the appellant contacted Centrelink and gave an	30
estimate of her income and her partner's income as zero. At
that time, they had each been working for over a year. On 18
January 2006, the appellant and her husband lodged an income and asset update with Centrelink. In reply to the question, "Are you and/or your partner currently employed?", the	40
appellant answered, "No," and she signed the document. At this time the appellant's husband was working fulltime for Central Hire and Contracting.
Notwithstanding these two more proactive steps, the Crown	50
Prosecutor told the Acting Magistrate that it is relevant, it was largely fraud by omission. The combined gross employment income of the appellant and her husband during the charge

7 ORDER 60

period was approximately $217,450. This income fluctuated

During the charge period, the appellant and her husband	10
declared $4,127.54 in employment income to Centrelink.
Centrelink calculated that the appellant was entitled to
receive $12,420.23 of the $41,233.23 in benefits she received during the period. The total overpayment attributable to the appellant's conduct was $28,813. At the date of sentence, the	20
appellant had made no repayments; therefore that total amount remained outstanding.
As part of the investigation, Centrelink wrote to the
appellant and invited her to participate in a formal	30
interview. She did not respond.
The Crown Prosecutor correctly submitted to the Acting
Magistrate that: "The superior Courts, in recent years, have
clearly expressed the view that social security fraud is to be	40
viewed seriously because it's easy to commit, difficult to
detect and involves a system which relies on the honesty of
those who participate. Deterrent sentences are therefore
called for, but any such sentences must be balanced against
the defendant's personal circumstances in each case."	50

1

from fortnight to fortnight, but averaged about $2,110 between
them per fortnight. About $22,000 of this amount was earned

by the appellant, and the remainder was earned by her husband.

The prosecution submitted with reference to section 17A of the sentence and an appropriate penalty would be a head sentence 8 ORDER 60

v. Carstens, No. D389 of 2004, which was one of three	10
comparative sentences in the schedule tendered.
However, the Prosecutor added that because of health problems
the appellant had been assessed as not suitable because she
was unable to do the community service components. This was a	20
reference to a probation and parole assessment which was placed before the Acting Magistrate. His Honour responded, "So community service wouldn't be an appropriate order anyway by the sound of it."
30
I note that without objection by counsel for the respondent,
Mr Smail of Queensland Corrective Services addressed me during
the hearing of oral argument on this appeal. His submissions
to the Court are to the effect that the position in relation
to community service and her suitability to undertake an	40
intensive correction order remain unchanged as at the date of this hearing, having regard to the suitability of projects available in the Emerald area.
The Prosecutor before the Acting Magistrate particularly	50

1

in the range of 12 months with a period of about two months to
serve. The Crown Prosecutor noted that an intensive
correction order would also be in range. This would appear to
be a reference to the decision of the Chief Judge in Rosales

stressed the decision of O'Brien DCJ in Groundwater v. Arthur, actual period of imprisonment. The appellant's legal representative submitted to the Acting Magistrate that the 9 ORDER 60

1

mitigating circumstances and the appellant's personal
circumstances were such that an actual period of imprisonment
would not be imposed. He argued for her immediate release on

a recognisance, with an extensive period of probation.

10

He said that since his first involvement, which is noted on
the bench charge sheet as 28 July 2009, it was intended to
make full reparation but it was wished to deal with both
sentence and reparation at the same time so as to be able to

enter realistic arrangements based on capacity to pay.	20
Therefore, he said, it was not a case in which the appellant
was lacking remorse. His submissions focused on her personal
circumstances which related to her difficult life. I adopt
the concise summary in the outline of submissions on her
behalf for this purpose.	30
She was the third of six children. Her mother developed a
dependence on alcohol and became incapable of caring for her
children so that the appellant had to undertake much of that
work. When she was 15 years old, her mother was killed in a	40
car accident. Before her mother's death, the appellant and her younger sister were struck by a car, as a result of which her sister suffered and acquired brain injury. Therefore, the appellant was trying to care for and support her sister.
50

After the death of their mother, the children were separated. The appellant was left to fend totally for herself. From an early age she suffered from extreme migraine, which has been a continuing feature of her life. She entered an unsuitable 10 ORDER 60

1

relationship with a boyfriend who was violent. In 1982 at the
age of 18, she was diagnosed with cervical cancer, which
required her to undergo a biopsy, which has had an affect on

her life.

10

In 1984 at the age of 20, she fell pregnant and her child was stillborn. Despite the domestic violence issues, she married her partner. In 1987 and in 1988, she gave birth to a son and

a daughter respectively, but separated from her partner in

1988 as a result of his violence. They subsequently divorced.	20
Later that year, she met her current husband and they had a
daughter in 1991. Her current husband has been very
supportive of her, despite the difficulties they have
experienced throughout life. However, the appellant continued	30
to have severe migraines which, with the events in her life, have contributed to depression and anxiety, for which she has sought medical help.
On 31 July 1998, she underwent brain surgery in the hope it	40
would relieve the severe migraines. It was not completely
successful, and left her with side effects, namely a loss of memory and permanently lost feeling in her left arm. It did not alleviate the migraines, although they were different from
her original headaches. This has contributed to her ongoing	50
depression and anxiety and she had continued with medication.

She was treated, among other things, with antidepressants to help her symptoms. This is confirmed by a report from the 11 ORDER 60

1

Exeter Medical Centre, which was tendered on sentence. The
appellant's husband suffered a work-related back injury in 1997 and was unable to work in his usual occupation. As a result of his injury and the appellant's state of health, they

received disability pensions in about 2001.	10
They had been living in Tasmania but returned to Capella in Queensland in approximately 2002. This was precipitated by the appellant's husband's then inability to work and by her being stalked in Tasmania and being assaulted by the stalker,	20
as a result of which she suffered a broken nose.
In 2004 and again in 2008 the appellant contracted Ross River
fever and she continually lived with the symptoms of that
condition, which are disability, pain, lethargy, diarrhoea and	30
nausea. The appellant described it as a constant state of flu over an 18 month period.
With the consent of the Prosecutor, an affidavit sworn by the
appellant on 21 April 2010 was read for the purposes of this	40
appeal. It demonstrates that she continues to suffer the complications from the Ross River fever and the migraine condition.
The reports tendered on her behalf before the Acting	50

Magistrate included one from the local medical practice, which she had attended since 2003. This confirms that she has been treated by that practice for depression, posttraumatic stress disorder, migraine, hypertension and chronic back pain. She 12 ORDER 60

1

was referred to a consultant psychiatrist for the depression

and the posttraumatic stress disorder.

A report from a Mr Swarbrick, consultant psychiatrist, was

tendered. It is based on his interview with the appellant and	10
her husband on 14 August 2009. He says that the appellant
told him that she had taken the initial documentation to
Centrelink when she and her husband started working again.
However, she had failed to follow up with further details when
their incomes changed. She had become increasingly aware of	20
the overpayments and in an effort to reduce the stress, simply avoided doing anything about it.
Mr Swarbrick frankly challenged her on how this explained
making false statements to the organisation. The appellant	30
responded, "I knew I had to give accurate information, but I
didn’t want to deal with it - I stopped opening the mail." He
observes that if it is shown she was suffering from severe depression up to two years previously, then her ability to manage her financial affairs may well have been impaired.	40
Although no psychiatric report was tendered on these issues, as indicated there was evidence before the Acting Magistrate that she had been treated for depression and posttraumatic
stress disorder since 2003 and had been referred to a	50
consultant psychiatrist as a result. Mr Swarbrick summarised the appellant's explanation as a failure to inform Centrelink of the change in circumstances because "she felt to

13 ORDER 60

overwhelmed and anxious to do so."

1

Of particular importance is his opinion that: "I think it is
very likely, given the reports of her health issues, that
Ms Smith has suffered a long period of depression which could

easily have given rise to a sense of hopelessness, significant	10
procrastination - even on issues which could be seen as important - and withdraw from social contact and normal function in the community."
This is based on his experience that people who find	20
themselves in these circumstances often neglect to do things that most people would consider essential, including attending to the usual matters in being a functioning individual in the community.
30
His opinion continues: "It is likely that if Ms Smith were
significantly depressed, her ability to attend to these
matters would have been impeded, both by intellectual and
psycho-motor retardation and by heightened states and anxiety
and avoidance. It is probable that in this state, she would	40
have avoided or been evasive of questions and enquiries about
her accountability… Such situations can become a vicious spiral in which the anticipated negative consequences of 'doing the right thing' discourage the person from taking
action to address the situation - which in turn gets worse the	50
longer it is left.

I am not suggesting that Mr and Ms Smith should be exonerated of their behaviour and responsibilities because of the above 14 ORDER 60

1

possibilities. Rather, I am suggesting that although they
manifestly failed in their responsibilities, there were
probably some mitigating issues that encouraged them to simply

avoid addressing the issue until it was brought to a head.

10

They appear to be genuine in their intentions to address the situation. It is my view that sending either of them to prison would be very likely to jeopardise Ms Smith's somewhat precarious state of mental health…"

20

The Acting Magistrate approached the exercise of his
sentencing discretion by, adopting his terminology, expressly
taking into account or having regard to the maximum penalty
for the offence; the circumstances of the offence as outlined

by the prosecution; the submissions made by the defence,	30
including all reports and documents submitted; the appellant's
antecedents, including her age, that she was married with
three adult children and had no prior convictions; the
appellant's plea of guilty, which he expressly said was in her
favour; the appellant's personal circumstances as explained by	40
her solicitor, including her medical and mental health issues;
Mr Swarbrick's report, with particular reference to the
passages I have quoted, including the possible effect a term
of imprisonment would have on her; the report by Community
Corrections stating the appellant was unable to do community	50

service work or an intensive correction order, which would
include a community service component, noting this was through
no fault of her own but because of health issues; the amount
and duration of the offending, being $28,813 over a four-year 15 ORDER 60

1

period; the joint income of the appellant and her husband
during this period was about $217,000, of which her income was
$22,000; the offence was detected by way of data match; the
appellant did not participate in a record of interview; and at

the time of sentence, no money had been repaid.	10
His Honour then referred to the necessity to impose penalties that reflect the seriousness of the appellant's behaviour and to the necessity for a penalty which has a general and
specific deterrent effect. He said: "Any penalty the Court	20
imposes has to act as a deterrent effect on yourself and other persons to discourage them from committing similar offences… if the Courts impose light penalties, it may be seen to give the go-ahead for other persons to commit those offences."
30
Having stated that he had considered all the options
available, and again saying that he had full regard to her
solicitor's submissions, he referred to the comparable
sentence of Groundwater, where the penalty was 12 months
imprisonment, to be released after serving four months and	40
entering into a $3,000 recognisance to be of good behaviour for three years.
His Honour stated that an appeal against this sentence was
dismissed. He considered that it was held in Groundwater	50

"that that was the appropriate penalty that should have been
imposed". He considered this case to be factually similar to
the appellant's case, but noted there were some grounds for
saying the penalty for the appellant should be lower because 16 ORDER 60

1

Groundwater continued to offend after being notified of the overpayment.

His Honour then concluded as follows: "Now, the end result is

that I am considering a term of imprisonment, and of course,	10
I've considered all other available sentences that can be
imposed. As I say, community service and an intensive
correction order are not appropriate. They can't be imposed
because you wouldn’t be able to comply with those orders.
Now, in all the circumstances, I am satisfied that no other	20
sentence is appropriate apart from a term of imprisonment, in
my view. Now, the reasons I consider that is obviously the
seriousness of the offence, involving a fraud of over $28,000,
almost $29,000, over a four year period, and if any other
penalty were imposed, it would not have a deterrent effect on	30
both yourself or other persons, so I intend to impose a term
of imprisonment… Now, the order is that you will be convicted
and sentenced to a term of imprisonment for 12 months. I'll
order that you be released after serving one month. Now, I
believe the appropriate sentence would have been a term of 12	40
months to serve three months, but I'll impose an order that
you serve only one month, in view of your personal
circumstances, as explained by Mr Lumsden. So in effect, what I'm saying is I believe the penalty should have been 12 months imprisonment, to be released after serving three months	50

because the facts were different to the matter of Groundwater,
but in view of what was said by your solicitor, I believe the
appropriate penalty is that you be sentenced to 12 months
imprisonment to be released after serving one month." 17 ORDER 60

1

In support of the appeal, Mr Hamlyn-Harris submits on the
appellant's behalf that, having regard in particular to the
extenuating personal circumstances in which she committed the

offences, a sentence should be imposed which does not require	10
an actual term of imprisonment to be served. Therefore, he submits, the sentence imposed in manifestly excessive in all the circumstances because of her personal circumstances.
In support of this, he also argues that his Honour erred in	20
reasoning as he appears to have done, that because the appellant would not be able to comply with an order of community service or an intensive correction order, no other
sentence was appropriate apart from imprisonment.
30
It is also submitted that his Honour erred in forming the
view, in effect, that notwithstanding the appellant's personal circumstances, he had to impose an imprisonment because of the amount involved and the need for deterrence. Reference is
made to Smith v. Spiers (1995) 84 A Crim R 44, especially at	40
56-51. I will discuss this case subsequently in this judgment.
Associated with this, it is submitted that his Honour did not
take sufficient account of the mitigating factors associated	50

with the appellant's personal circumstances which included her
health problems and likely depression. In support of this,
reference is made to Du Randt v. R (2008) NSW CCA 121 at [41]-
[44], in which it is submitted the New South Wales Court of 18 ORDER 60

1

Criminal Appeal considered that the health of the accused is an important consideration pursuant to section 16A (2)(m) of the Crimes Act, which requires the Court to have regard, when
passing sentence, to the character, antecedents, cultural

background, age, means and physical or mental condition of the	10
person to be sentenced. I will also discuss this decision subsequently. I simply observe at this point that in that case, the Court was concerned with the applicant's mental
health.
20
Finally, it was submitted that the comparative cases of
Groundwater, Rosales and Andersen v. the Commonwealth Director
of Public Prosecutions Appeal No. 4060 of 2005 are consistent with a sentence which does not involve actual custody, having regard to the appellant's particular circumstances.	30
Accordingly, the submissions on behalf of the appellant, that
the sentence of actual imprisonment is manifestly excessive,
are based on what are argued to be mitigating factors
associated with her personal circumstances.	40
In response, the respondent refers to the amount and period of
the fraud and argues the Acting Magistrate gave due regard to
all matters raised upon sentence, including the appellant's
medical and mental health problems and the psychologist's	50
report tendered at sentence.

It is also argued the comparative cases show a sentence of imprisonment with time to serve is within range for this type 19 ORDER 60

1

of offence. It is submitted the cases support a range where
custodial sentences or sentences of imprisonment to be served
by intensive correction orders are imposed. In support of
this, it is argued the sentencing principles for offences of

social security fraud are well established. These submissions	10
have been confirmed in the oral supplementary submissions which have been made on behalf of the respondent this morning.
As was argued before the sentencing Magistrate, it has been
reiterated that having regard to the fact such offences are	20
prevalent, difficult and costly to detect, and the social
security system is largely dependant upon honest
representation by beneficiaries, deterrence is a primary
sentencing consideration. R v. White (CA No. 411 of 1986) is
cited in support of this proposition. With reference to R v.	30
Holdsworth (CA 94 of 1993), it is said that defrauding the lead to a custodial sentence.
Fairly, the passage from R v. Oag (1993) QCA 225 is cited for	40
the proposition that: "The need for deterrence must be balanced against the appellant's circumstances, including his remorse and the problems which his family were experiencing at the time."
50

However, I am reminded that although personal circumstances may, in appropriate cases, weigh heavily in the balance against the need for deterrence, the Court of Appeal has been repeatedly emphasising the need for deterrence and the 20 ORDER 60

1

imposition of substantial terms of imprisonment where it is
unable to identify any significant personal circumstances to
justify departing from the usual course. Reference is made to

R v. Hurst (2005) QCA 25.

10

I am also reminded of the principle in Lowndes v. R, to which
I have referred. This is particularly in response to the
appellant's argument, that the seriousness of the offence can
be appropriately recognised by a sentence of 12 months

imprisonment with immediate release on recognisance. In	20
particular, it is said this argument does not go to whether the sentence imposed is manifestly excessive. It is argued that there is no indication his Honour considered a community
service order might have been an appropriate penalty if the
appellant had been able to comply with the order.	30
The respondent submitted with reference to this: "The
Magistrate stated that imprisonment was the only appropriate
penalty. He appears to have considered that it may have been
appropriate for the appellant to serve the sentence of	40
imprisonment in the community by way of intensive correction
order, but that her health problems made her unable to do the
community service component. As a result, he ordered that the
appellant would be required to serve a period of imprisonment
in custody."	50

It is also submitted that there is nothing in the sentencing remarks to indicate the Magistrate believed he was compelled to sentence the appellant to imprisonment due to the amount of 21 ORDER 60

1

the fraud and the need for deterrence, regardless of the
appellant's personal circumstances. Rather, according to the respondent, it is apparent that his Honour gave consideration to a number of the factors in section 16A of the Crimes Act

and came to the view that considering the amount and duration	10
of the offending and the need for general and specific deterrence, a sentence of imprisonment was the only appropriate penalty.
In response to the submission that his Honour did not take	20
sufficient account of the mitigating circumstances associated
with the appellant's personal circumstances, which included her health issues and likely depression, the appellant says that the Acting Magistrate referred specifically to the
appellant's health problems and to Mr Swarbrick's	30
psychological report.
Further it is submitted that in stating the penalty should
have been 12 months imprisonment, to be released after serving
three months, his Honour took into account the defence	40
submissions in arriving at the penalty of 12 months imprisonment, to be released after serving one month. As such, it is asserted he moderated the penalty significantly in light of the appellant's personal circumstances.
50

In conclusion, it is submitted the range of sentence for this type of offence is six to 12 months imprisonment, and in the circumstances of this case, the sentence imposed was not manifestly successive. As I have observed, the substance of 22 ORDER 60

1

these written submissions was confirmed in the short oral
submissions made before me this morning on behalf of the

respondent.

I do not understand the appellant to argue that a sentence	10
other than a sentence of imprisonment is appropriate in all
the circumstances of the case, or that the sentence of 12
months imprisonment imposed is in itself manifestly excessive.
The question which the argument raises is whether a sentence
of imprisonment involving actual imprisonment of one month is	20
manifestly excessive.
In addressing this question, I accept that deterrence is the
primary sentencing consideration, in accordance with the
authorities to which the respondent has referred. However, as	30
has also been recognised in R v. Oag, this must be balanced against the appellant's personal circumstances.
In the judgment of Williams J in R v. White, which is quoted
by the respondent, his Honour states: "A custodial sentence is	40
clearly the most likely to have the required deterrent effect,
but that does not mean that there will not be cases, indeed,
perhaps many cases, where factors personal to the offender,
under consideration, will warrant or justify the imposition of
a non-custodial sentence."	50

In that case, Williams J, with whom the Chief Justice and Moynihan J agreed, dismissed an appeal by the Director of Public Prosecutions against the imposition of a non-custodial 23 ORDER 60

1

sentence for five counts of imposition involving about

$25,000.

In R v. Holdsworth, although the judgment of the President of

the Court of Appeal was a dissenting one in relation to the	10
penalty to be imposed, he relevantly said: "While deterrence is a significant factor in sentencing in respect of offences such as those of which the respondent is guilty, the need for
deterrence must be balanced against other considerations,
including, especially in this instance, the point which has	20
been reached in the Court process and the respondent's
personal circumstances. The need for deterrence can be
sufficiently met by the imposition of a period of imprisonment
which is suspended for a substantial period, during which the
respondent must be of good behaviour."	30
This is a principle of general application, although minds may differ as to how it applies to the circumstances of a particular case.
40
In R v. Oag, in addition to the passage I have quoted from the
respondent's outline of argument, the judgment of the Court
constituted by the President, and McPherson and Dowsett JJ
also said at page 2:
50

"However the comparative cases referred to do not make a
custodial sentence essential, and due weight must be

given to the applicant's personal circumstances."

24 ORDER 60

Immediately before the proposition on page 3 of the judgment, which I have previously quoted from the respondent's outline, their Honours say: "Nonetheless, in the particular

circumstances of this case, the applicant should be given a

further chance. Deterrence can be sufficiently achieved by	10
the imposition of a period of imprisonment which is initially suspended for a substantial period, during which the applicant must be of good behaviour."
In the circumstances of that case, an appeal was allowed	20
against a sentence of 18 months imprisonment, to be released
after three months upon giving security by way of a $3,000
recognisance to be of good behaviour for three years on four
counts of imposition, totalling a little under $19,000, where
full restitution had been made with money borrowed by the	30
applicant from his parents. The Court substituted a sentence of nine months imprisonment with an order for release forthwith on security of $1,000, 80 hours community service and a three year good behaviour bond.
40
R v. Hurst involved a conviction on a guilty plea on two
counts of defrauding the Commonwealth of well over $70,000
over an eight year period. He was sentenced to three years imprisonment, to be released forthwith upon entering into a recognisance of $1,000, on condition that he be of good	50

behaviour for three years with a reparation order. The
maximum penalty on each count was 10 years imprisonment. The
second offence simply reflected the legislative changes over
the period, as in this case. 25 ORDER 60

1

At page 7 of the judgment of McMurdo P, with whom Mackenzie J
and Chesterman J agreed, her Honour, with reference to White
and Oag, observed that: "The authorities nevertheless

recognised that in exceptional circumstances, a sentencing	10
Judge retains a discretion to impose a non-custodial sentence and that the need for deterrence must be balanced against the personal mitigating factors of each case."
However, in that case the mitigating factors were not so	20
compelling as to outweigh the principals of general
deterrence, requiring a period of actual custody for such
serious offending behaviour. It was considered that the
mitigating factors should have been reflected in an order for
his early release from detention after serving a period of	30
actual detention, rather than an order for his release forthwith.
The Court allowed the appeal by the Commonwealth Director of
Public Prosecutions, by deleting that part of the order that	40
he be released forthwith, and instead ordered that he be
released after serving six months imprisonment. It was
unchallenged that he had a remarkably traumatic life, which
according to a psychiatric report, predisposed him to an
anxious and depressed mood so that it was difficult for him to	50
cope with the stresses associated with a custodial sentence.

Unlike this case, there was no expressed suggestion that sending Hurst to prison would be very likely to jeopardise his 26 ORDER 60

1

somewhat precarious state of mental health. In this regard it
is relevant to refer to R v. Tacey, an unreported decision of
the Queensland Court of Appeal, constituted by Pincus and
Davies JJA, and White J, which is conveniently referred to in

Smith v. Spiers.	10
As appears from that decision, Tacey (Unreported, Court of
Appeal Queensland, 2 March 1994) was a successful appeal by
the Director of Public Prosecutions against the adequacy of a
fine of approximately $20,000 for three charges of defrauding	20
the Commonwealth under section 29D of the Crimes Act by
avoiding $114,615 tax. The Court substituted a total fine of
$105,000, having referred to a range of circumstances of
mitigation, which in its view were not sufficient when taken
together to justify a sentence less that one of imprisonment	30
including a period actually to be served.
Their Honours said: "On that evidence, the learned sentencing
Judge concluded that there was an unacceptable risk with the
stress of prison that the respondent would suffer a stroke, in	40
consequence of which we infer she could die. It should not be
thought that a sentence of imprisonment may be avoided by an
offender, merely because she or he has a serious illness, even
one involving some risk of death. In every case, the risk of
death or serious deterioration of health must be measured and	50

balanced against those factors which would ordinarily require
the imposition of a term of imprisonment. However, in view of
the learned sentencing Judge's conclusion in this case, that
there was an unacceptable risk that the respondent would 27 ORDER 60

1

suffer a stroke if sent to gaol, we conclude, though with some
hesitation, that the respondent should not be required to

serve a term of imprisonment."

This was despite the fact the Court considered that prima	10
facie, the offence called for the imposition of a term of
imprisonment and a requirement the respondent serve part of
the term. In the present case, on the psychological evidence
of Mr Swarbrick, which has not been challenged, there is an
unacceptable risk that the appellant's somewhat precarious	20
state of mental health would be jeopardised if she was sent to gaol.
The mental state to which I refer is the fact it is very
likely, given the reports of her mental health issues, that	30
she has suffered a long period of depression. Although no
psychiatric evidence was called on this issue, there is also
unchallenged evidence from the medical practice to which I
have referred, that she has attended and been treated since
2003 for depression and posttraumatic stress disorder and had	40
been referred to a consultant psychiatrist regarding this.
According to the report from the Exeter Medical Centre during
the period from June 1995 to December 2002, she had anxiety
and depression. Accordingly, at the time of sentence she had	50

a long history of approximately 14 years of depression. There
is nothing in the sentencing Magistrate's decision which
suggests that he did not proceed on the basis that her mental
condition was at all relevant times as set out in these 28 ORDER 60

1

reports.

In these circumstances, the decision of the New South Wales
Court of Criminal Appeal in Du Randt v. R is relevant. As

indicated, it was there held that section 16A (2)(m) of the	10
Crimes Act requires regard to be had to the physical or mental condition of the person to be sentenced.
In this case, the sentencing Magistrate appears to have
accepted Mr Swarbrick's report by stating he had regard to it	20
and especially referring to page 5, where the possible effect
of imprisonment on her was explained. If so, he must have
accepted there was an unacceptable risk that her somewhat
precarious state of mental health would be jeopardised if she
was sent to gaol.	30
In view of this, as was the case in Tacey, I conclude, not
without some hesitation, balancing this against those factors
which would ordinarily require the imposition of an actual
term of imprisonment, that the appellant should not be	40
required to serve an actual term of imprisonment in this case. His Honour's decision to impose an actual term of imprisonment appears to have been influenced by his acceptance that her
health problems made her unable to do the community service
component of an intensive correction order.	50

I agree with what is submitted by the respondent at page 9 of the outline of submissions where, as I have already observed, it is said: "The Magistrate stated that imprisonment was the 29 ORDER 60

1

only appropriate penalty. He appears to have considered that
it may have been appropriate for the appellant to serve the
sentence of imprisonment in the community by way of an
intensive correction order, but her health problems made her

unable to do the community service component. As a result, he	10
ordered that the appellant would be required to serve a period of imprisonment in custody."
This was in keeping with the concession by the respondent
during sentencing submissions that an intensive correction	20
order would be within range. I consider that in circumstances where the Acting Magistrate appears to have considered that it may have been appropriate for the appellant to serve the
sentence of imprisonment in the community, it was an error to
order that she serve a period of imprisonment in custody,	30
because her health problems made her unable to do the community service requirement of an intensive correction order.
As submitted on behalf of the appellant, the respondent's	40
sentencing submission was effectively a concession that it
would be within proper range not to impose actual
imprisonment. In my view, given the range of sentencing
options available under the Crimes Act to enable an
appropriate sentence to be structured, to achieve deterrence	50

and to balance mitigatory factors, it is an error to proceed
on the basis that an intensive correction order is the only
means of achieving this, such as in the absence of an ability
to undertake the community service component, through no fault 30 ORDER 60

1

of the appellant, the only alternative sentence was one

involving a short period of actual imprisonment.

As was said in Weetra v. Beshara (1987) 46 SASR 484; 29 A Crim

R 407 at 485; 408 per Jacobs ACJ; and at 490-492; 413-415 per	10
Prior J, as cited in Smith v. Spiers at 63, an order for
immediate release is part of what is a sentence of
imprisonment, even though non-custodial. Further, I consider
that the service of the appellant's sentence in the community,
in conjunction with a 12 month probation order, including a	20
requirement that she submit herself to such medical, psychiatric and psychological treatment as directed by a community Corrections Officer is in itself an onerous obligation upon her.
30
In these circumstances, the need for deterrence is
sufficiently met by the imposition of a period of
imprisonment, with an immediate release upon entering into a
recognisance, conditioned that she be of good behaviour for a
period of two years and subject to 12 months probation.	40
This is not outside the range of sentences which emerges from the comparative sentences to which I have referred. Of those cases, Groundwater is the only one in which a sentence
involving an actual period of imprisonment has been upheld.	50

In Rosales and Andersen, such sentences have been set aside and a sentence of imprisonment to be served by an intensive correction order imposed. However it does not follow that an 31 ORDER 60

1

intensive correction order is the only sentencing option
available for serving a sentencing of imprisonment in the

community.

As the sentencing Magistrate accepted, Groundwater is a more	10
serious case than this because of his continued offending
after having been notified of an overpayment. However, he was
incorrect to say O'Brien DCJ held in that case that the
penalty involving four months actual imprisonment was the
appropriate penalty that should have been imposed.	20
His Honour did not have the actual decision before him. If he
had the opportunity to read it, he would have appreciated the
decision was that it cannot be properly argued the sentence
fell outside the relevant range and it cannot be argued that	30
it was other than a proper exercise of a sentencing discretion.
It was therefore an error to arrive at a decision that the
appropriate penalty was that the appellant serve one month of	40
actual imprisonment on the basis of reasoning that commenced
from the point that the penalty imposed in Groundwater was the
appropriate sentence for the circumstances of that case, and
then reduce this to a penalty which involved serving three
months imprisonment, having regard to the circumstances of	50

this case, and then reducing the time to be served by a
further two months in view of her personal circumstances.
In Rosales, the Chief Judge set aside a sentence of 32 ORDER 60

1

imprisonment that involved being released after serving 10
weeks for a fraud involving $24,000 over 28 months for failure
to declare income from employment while in receipt of a
parenting payment single, according to her Honour's sentencing

remarks.	10
Reference is also made to the total amount overpaid, being
$25,000. In that case, a false declaration had not been
lodged, but the appellant knew that sitting back and receiving
benefits while earning money was unlawful. Although she did	20
not make full admissions, she participated in a record of
interview. She was responsible for the care of a year 2 child
and also a mother with rheumatoid arthritis and little
English. The mother could not take care of the child. There
were no other family members who could care for the mother and	30
the child.
The Chief Judge concluded that taking all the circumstances
into account, and having regard to the sentencing Magistrate's
remarks: "I have no doubt he took all those things into	40
account - but in my view he did not give sufficient weight to
the cost to the community of 10 or 12 weeks imprisonment for
the appellant, that imprisonment in the community provides, in
her circumstances, a very heavy penalty, which is a grave
punishment and which would certainly act as a deterrent in my	50
view."

That was not a case in which there was an unacceptable risk that the appellant's somewhat precarious state of mental 33 ORDER 60

1

health would be jeopardised if she was sent to gaol. There
was no issue of such health problems making her unable to do
the community service component of an intensive correction
order. To adopt the words of the Chief Judge, because of the

appellant's condition in the present case, the sentencing	10
Magistrate did not give sufficient weight to this factor.
However, her Honour did not have to consider how to address
the issue of sentence once she had concluded that sufficient
weight had not been given to a relevant factor in the event	20
that an intensive correction order was not open for the
reasons existing in this case. It cannot be concluded in
these circumstances that her Honour would have considered a sentence of imprisonment with an immediate release, coupled with a 12 month probation order, was not a heavy penalty which	30
is a grave punishment such as to act as a deterrent.
In Andersen, Brabazon DCJ set aside a sentence of eight months
imprisonment, which required the appellant to serve six weeks
actual imprisonment and instead sentenced her to eight months	40
imprisonment to be served concurrently by way of an intensive
correction order on two charges that she knowingly received
money from Centrelink to which she was not entitled. The
offences took place over four years and related to returning
to work without notifying Centrelink. The overpayment was	50
$19,180, of which she repaid $2,546.

The sentencing Magistrate took into account the effect of the sentence on her two young children and a prior history of 34 ORDER 60

1

domestic violence. He made no mention of her mental
condition, for which she had been treated. There was

counselling and medication for depression.

Brabazon DCJ made reference to the statements of principle in	10
House v. R and Lowndes v. R and proceeded on the basis that it must be demonstrated the proceedings before the Magistrate had miscarried in some way. Brabazon DCJ considered the failure
by the sentencing Magistrate to mention a number of matters
required to be considered by section 16A of the Crimes Act and	20
the misapprehension about the state of the authorities meant that the matter should be reviewed by the Court and an appropriate sentence imposed.
Having considered the matters which were not taken into	30
account, his Honour concluded that it was clear a Court was not compelled to send the appellant to prison. Although he considered the sentence to actually serve six weeks was within
the acceptable range, he said the mistake made by the
sentencing Court was not considering the possibility or	40
desirability of an intensive correction order. He considered
this to be an order within range. Therefore, he said, the
real choice was between actual imprisonment and an intensive
correction order. All things considered, he decided the
intensive correction order was appropriate.	50

Again, in that case, there was no suggestion the appellant's mental condition involved an unacceptable risk of a somewhat precarious mental state being jeopardised if sent to gaol. 35 ORDER 60

1

Further, there was no issue of such health problems making her unable to do the community service requirement of the intensive correction order.

His Honour did observe at page 11 that he was not sure if a	10
mere community service order is within range, in that standing alone, it may not be severe enough to match the circumstances. However, he made no comment on whether a probation order would be in range in conjunction with a sentence of imprisonment.
Therefore, it can't be excluded his Honour would have	20
considered such a combined penalty within range, particularly in the circumstances of the present case.
Further, the sentencing Magistrate, while making reference to
page 5 of Mr Swarbrick's report concerning the possible effect	30
of a term of imprisonment on the appellant, made no specific reference to the opinion on the same page of it being likely that if she were significantly depressed, her ability to
attend her Centrelink obligations would have been impeded,
both by intellectual and psycho-motor retardation and by	40
heightened states and anxiety and avoidance, such that it is probable she would have avoided or been evasive of questions and enquiries about her accountability.
As such, he suggests there were probably some mitigating	50

issues that encouraged her to avoid addressing the issue until
it was brought to a head. Du Randt v. R and the authorities
it applies, such as Leach v. R (2008) NSWCCA 73, R v. Verdins
(2007) VSCA 102 and R v. Israil (2002) NSWCCA 255 identify the 36 ORDER 60

1

ways in which mental illness of an offender may be relevant to
the sentence to be imposed. These include the reduction of
her moral culpability, as are the claims of general and
personal deterrence on the sentencing discretion of the Court

reduced. I particularly refer to the discussion at paragraph	10
[24]-[26]. I also refer to the statements to this effect in R v. Clark [2009] QCA 361 at [27] in the context of a bipolar disorder.
In this case, the Acting Magistrate accepted the appellant had	20
mental health issues, which on the basis of Mr Swarbrick's
report, were likely to have reduced her moral culpability and
the claims of general and specific deterrence to an extent.
If his Honour had taken this factor into account, I would have
expected some reference, however brief, to have been made to	30
this. I consider that his Honour was in error in failing to
expressly address this issue so as to take it into account in
the exercise of his sentencing discretion. If he had done so, this would have been another factor entitling the appellant to an amelioration of her sentence.	40
In all these circumstances, despite the sentencing
Magistrate's statement that in imposing sentence he took the
appellant's personal circumstances into account, including her
medical and mental health issues, and had regard to	50

Mr Swarbrick's report, especially where there was an explanation of the possible effect of imprisonment on her, I conclude that balancing the unacceptable risk of her precarious state of mental health being jeopardised if she was 37 ORDER 60

1

sent to gaol against the factors which would ordinarily
require the imposition of a sentence of imprisonment, that the
appellant should not have been required to serve an actual

term of imprisonment.

10

Being cognisant of the principle in Lowdnes v. R, I consider
that the sentence imposed to be manifestly excessive. In
terms of House v. R, the Acting Magistrate did not give
sufficient weight to a material consideration. Put another

way, the sentence imposed was outside the sound exercise of	20
the Court's sentencing discretion.
As I have identified, his Honour was also in error in ordering
the appellant serve a period of imprisonment imposed in
custody because her mental health problems made her unable to	30
do community service or an intensive correction order in
circumstances which he appears to have considered it may have
been appropriate to serve that sentence in the community.
This involved acting on a wrong principle and allowed
irrelevant material to guide him within the terms of House.	40
He was also in error by not taking into account a material
consideration, by failing to take into account in the exercise
of his sentencing discretion the likelihood that the
appellant's mental health condition had reduced her moral	50

culpability and the claims of general and specific deterrence
to an extent. These two errors in themselves allow me to
exercise the sentencing discretion afresh. In so doing, the
appellant should not be sentenced to serve an actual term of 38 ORDER 60

1

imprisonment for the reasons I have identified.

Accordingly, the order of the Court is:

1. Appeal against sentence allowed

2. The sentence imposed at first instance is varied by 10

deleting that part of the order that the defendant be released after serving one month of the sentence, and instead order she be released forthwith.

-----	20
30
40
50

39 ORDER 60