Twigden v Centrelink

Case [2010] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TWIGDEN v CENTRELINK

[2010] SASC 154

Judgment of The Honourable Justice Gray

28 May 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL

Appeal against sentence - defendant and appellant pleaded guilty to three counts of obtaining a financial advantage from Centrelink contrary to section 135.2(1) of the Criminal Code (Cth) - defendant sentenced to twelve month term of imprisonment - sentence suspended in part, but defendant ordered to serve 10 weeks immediate imprisonment - whether Magistrate erred in not suspending total term - consideration of further materials provided to Court on the hearing of the appeal.

Held: appeal allowed - defendant's mental condition and underlying cognitive difficulties at time of committing offences disclosed by the further materials, warranted suspension of the entire sentence of imprisonment imposed - sentence suspended on entry by defendant into a recognizance.

Criminal Code (Cth) 135.2(1); Mental Health Act 1993 (SA); Supreme Court Civil Rules 2006 (SA) r 286; Criminal Law (Sentencing) Act 1988 (SA) s 10; Crimes Act 1914 (Cth) s 16A(1)(e), s 16A(1)(f) and s 20, referred to.
Fox v Percy (2003) 214 CLR 118; R v Smith (1987) 44 SASR 587; R v Brain (1999) 74 SASR 92; Kovacevic v Mills (2000) 76 SASR 404; R v Thomson [2009] SASC 237; R v Cameron (1993) 171 LSJS 305; R v Wiskich (2000) 207 LSJS 431; R v Tsiaras [1996] 1 VR 398; Director of Public Prosecutions v Bannam (1985) 14 A Crim R 475; Slowiak v Director of Public Prosecutions (2000) 210 LSJS 100; R v Allen [2005] QCA 73; Matulich v Police (2007) 252 LSJS 219; R v Stubberfield [2010] SASC 9, considered.

TWIGDEN v CENTRELINK
[2010] SASC 154

Magistrates Appeal

GRAY J.

  1. This is an appeal against sentence. 

    Introduction

  2. At the time of the offending, the defendant was mentally ill, although not so unwell as to give rise to a mental impairment defence.  This appeal raises difficult questions with respect to the sentencing of offenders with such a mental illness. 

  3. The circumstances called for a thorough examination of the defendant’s offending and mental state at the time of the offending.  The reception of further evidence on the hearing of the appeal confirmed the defendant’s ongoing struggle with depression and difficulties with cognitive functioning.  The defendant’s mental illness provided an explanation for her offending and diminished the moral culpability associated with her offending.  It was only following a closer examination of the defendant’s difficulties that the evidence as to her diminished cognitive functioning was tendered to the Court. 

    Background

  4. On 27 January 2010, the defendant and appellant, Anne-Marie Twigden pleaded guilty to three counts of obtaining a financial advantage from Centrelink contrary to section 135.2(1) of the Criminal Code (Cth).[1]

    [1] Section 135.2(1) of the

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AGLC
Twigden v Centrelink [2010] SASC 154
Case
[2010] SASC 154
Decision Date

CaseChat Overview and Summary

Anne-Marie Twigden, the defendant and appellant, pleaded guilty to three counts of obtaining a financial advantage from Centrelink contrary to section 135.2(1) of the Criminal Code (Cth). Twigden was sentenced to a twelve-month term of imprisonment, with 10 weeks to be served immediately. Twigden sought to appeal against her sentence, arguing that the Magistrate erred in not suspending the total term of imprisonment. The appeal hinged on the consideration of further evidence provided to the Court, which highlighted Twigden’s ongoing struggles with depression and cognitive difficulties. These mitigating factors were argued to have significantly diminished her moral culpability and warranted a more lenient sentence.

The court was required to decide whether the Magistrate’s sentencing discretion had miscarried by imposing a sentence that was not manifestly excessive. Twigden’s counsel contended that the sentence did not adequately account for her mental health issues and cognitive impairments, which had contributed to her offending. The court needed to assess whether these mitigating factors were sufficiently compelling to warrant a more lenient sentence, potentially including a fully suspended term. Additionally, the court had to consider the principles of general and personal deterrence and whether the sentence imposed was appropriate in light of these principles.

The court examined the further evidence presented at the appeal, which included reports from a neuropsychologist and a psychiatrist. These reports highlighted Twigden’s significant cognitive impairments and the detrimental impact that imprisonment would have on her mental health. The court acknowledged the severity of Twigden’s offending but also recognised the importance of considering her mental health and cognitive functioning. The court concluded that the Magistrate had not sufficiently considered the impact of imprisonment on Twigden’s mental state and that a fully suspended sentence would be more appropriate. Therefore, the court allowed the appeal and ordered that the sentence be fully suspended.

The final orders of the court were that the appeal against sentence was allowed, and the sentence was set aside. The court ordered that the sentence be fully suspended, meaning that Twigden would not have to serve any term of imprisonment. This decision reflected the court’s view that the mitigating factors of Twigden’s mental health and cognitive impairments warranted a more lenient sentence.

Orders

Orders of the court

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Background

Background to the litigation

The circumstances called for a thorough examination of the defendant’s offending and mental state at the time of the offending. The reception of further evidence on the hearing of the appeal confirmed the defendant’s ongoing struggle with depression and difficulties with cognitive functioning. The defendant’s mental illness provided an explanation for her offending and diminished the moral culpability associated with her offending. It was only following a closer examination of the defendant’s difficulties that the evidence as to her diminished cognitive functioning was tendered to the Court. Background On 27 January 2010, the defendant and appellant, Anne-Marie Twigden pleaded guilty to three counts of obtaining a financial advantage from Centrelink contrary to section 135.2(1) of the Criminal Code (Cth).[1] [1] Section 135.2(1) of the Criminal Code (Cth) provides:(1) A person is guilty of an offence if: (a) the person engages in conduct; and (aa)as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and(ab)the person knows or believes that he or she is not eligible to receive that financial advantage; and (b)the other person is a Commonwealth entity. Penalty: Imprisonment for 12 months. Between February 2007 and July 2008, the defendant received a widow’s allowance from Centrelink to which she was only partly entitled due to income received from employment. During the 14 month period of her offending, the defendant worked as a registered nurse with three nursing agencies and earned approximately $64,800.00 gross. None of this income was declared to Centrelink despite numerous contacts with Centrelink customer service officers. As a consequence, the defendant received an overpayment of her widow’s allowance, totalling $16,460.99. The defendant’s offending was discovered through the Australian Taxation Office performing data matching. At the time of sentencing, the Court was provided with information that the defendant had been diagnosed with depression and a bipolar condition from the age of 19 years. A report from Jonathon Hare, a forensic psychologist, addressing the defendant’s mental state, and a report from a social worker, Tamara Otello, were before the Magistrate. In his report, Mr Hare set out the defendant’s background and history. At the time of the preparation of the report, the defendant was 56 years of age. The report disclosed that the defendant was raised in an abuse environment both at home and at secondary school and subsequently was in a mutually abusive marriage for more than 30 years. In 2004, the defendant separated from her husband and is now divorced. The defendant has two adult children with whom she has little to no contact. Mr Hare’s report further outlined that the defendant had a history of depression since the age of 19 years, and that over that time she had consulted many psychiatrists. She also had a history of abusing prescribed and over the counter drugs, in addition to heavy alcohol use.

Evidence

Evidence Before The Court

Counsel for Centrelink contended that the Magistrate’s sentencing discretion had not miscarried and that the sentence imposed was not manifestly excessive. It was said that having regard to the facts and circumstances of the offending, including the seriousness of the offending and the need for general and personal deterrence, the sentence imposed was within the appropriate range. Counsel submitted that the defendant’s mitigating circumstances were not such as to outweigh the seriousness of the offending and the need for deterrence, both personal and general. Ultimately, it was said that no error had been identified and that there was no basis to interfere with the Magistrate’s decision. Further Evidence On the hearing of the appeal, having regard to the opinions expressed by Mr Hare and Ms Otello with respect to the defendant’s cognition and mental functioning, the defendant sought an opportunity to place before the Court a neuropsychological report and a psychiatric report addressing those matters. That course was not opposed by Centrelink. As a consequence, further reports were tendered without objection: a report from the defendant’s current treating psychiatrist, Zsolt Lukacs dated 31 March 2010, a report from a forensic neuropsychologist, Mark Reid dated 8 April 2010 and a report from the defendant’s clinical psychologist, Amber Keast, dated 20 April 2010. Two additional reports originally provided to the Nurses Board from a clinical psychologist, Danielle Zerk, were also tendered on the hearing of the appeal. The two reports from Dr Zerk provided context to the aspects of the defendant’s mental state which warranted a report to be provided to the Nurses Board. The first of those reports was prepared in December 2005 and highlighted the recent decline in the defendant’s cognitive functioning and memory. Dr Zerk discussed the defendant’s increasing confusion and issues with memory. At that time, Dr Zerk provided the opinion that the defendant warranted supervision or close monitoring when performing tasks directly relating to use of memory. According to Dr Zerk, any complex cognitive tasks would be overwhelming for the defendant. In the second report of 6 February 2009, Dr Zerk expressed the opinion that the defendant in her then state was unfit to practice all aspects of nursing. Dr Zerk noted the defendant’s history of depression and her need for intensive support. The report records that the defendant had in the past been detained on more than one occasion under the Mental Health Act 1993 (SA). It was following the provision of this report that the defendant was most recently suspended from nursing practice. The further reports tendered supported Mr Hare’s opinion that an immediate custodial term would be detrimental to the defendant’s mental state and prospects of recovery. Dr Keast in her report outlined the impact on the defendant of the two nights spent in custody before being released on bail pending appeal. The trauma triggered by her imprisonment was associated with the defendant’s chronic and severe childhood abuse. Dr Keast made the following observations in relation to the impact of a 10 week term of imprisonment:Thus given the trauma expected to be triggered, one would predict that a custodial sentence of 10 weeks imprisonment would have an extremely detrimental impact upon [the defendant’s] mental state. Specially, it could be predicted that [the defendant] would likely to experience: dissociative-like symptoms such as feeling numb, disorientated, overwhelmed and unable to cope; re-experiencing symptoms such as flashbacks of the perceived trauma in prison and of her childhood abuse; and markedly exacerbated anxiety and depression symptoms – including suicidality. It is difficult to predict the duration of the aftermath, however such complicated trauma is time-intensive to treat with the exacerbation of symptoms likely to continue for an extensive period of time, possibly months or even years.Dr Keast observed that in addition to the immediate impact on the defendant’s mental state outlined, the risk that the defendant may lose her housing and become homeless and the interruption to the support networks which she has begun to build, would also significantly impact on the defendant’s mental functioning, concluding:In summary, extended incarceration is likely to have a significantly detrimental impact on [the defendant’s] mental functioning, hence markedly impacting her ability to function within the community upon her release and greatly increasing the practical and therapeutic support services that she will require.

Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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