Yarak v The Queen
[2008] NSWCCA 298
•11 December 2008
New South Wales
Court of Criminal Appeal
CITATION: Yarak v R [2008] NSWCCA 298 HEARING DATE(S): 27 November 2008
JUDGMENT DATE:
11 December 2008JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 3 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: CRIMINAL LAW - application to appeal against severity of sentences - imposing on the Commonwealth by untrue representation - dishonestly causing loss to a Commonwealth entity - single parenting payments - employment - plea of guilty - whether applicant suffering from depression and a dissociative behavioural state - expenditure beyond living expenses - hardship in separation from son - requirement for exceptional circumstances not met - whether sentences are manifestly excessive LEGISLATION CITED: Crimes Act (Cth) 1914
Criminal Code 1995CATEGORY: Principal judgment PARTIES: Coreen Monique Yarak (Applicant)
Crown (Respondent)FILE NUMBER(S): CCA 2007/15645 - 002 COUNSEL: P Boulten SC (Applicant)
WJ Abraham QC (Crown)SOLICITORS: Pryor Tzannes & Wallis (Applicant)
C Craigie SC (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0870 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 15 February 2008
2007/15645 - 002
Thursday 11 December 2008GILES JA
LATHAM J
MATHEWS AJ
1 GILES JA: I agree with Mathews AJ.
2 LATHAM J: I agree with Mathews AJ.
3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed in the Sydney District Court on 7 March 2008. The applicant had pleaded guilty to five charges. The first two were of imposing on the Commonwealth by an untrue representation, contrary to s 29B of the Crimes Act (Cth) 1914. The remaining three charges were of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1 of the Criminal Code 1995. The charges under s 29B carried a maximum sentence of two years imprisonment. Those under s 135.1 carried a maximum of five years imprisonment.
4 In relation to the two charges under s 29B, the applicant was sentenced to a fixed term of six months from 7 March 2008. A fixed term of three months, also commencing on 7 March 2008, was imposed in relation to the first of the three charges under s 135.1. In relation to the two remaining charges under that section, the applicant was sentenced to imprisonment for 18 months commencing on 7 September 2008, with an order that she be released on recognisance after nine months. Accordingly, the effective sentence in relation to all offences was a total imprisonment of two years with a release on recognisance after 15 months.
5 The background of the offences is as follows: in 1998 the applicant, who was then separated from her husband, applied for single parenting payments in relation to her son who was born on 22 September 1995. Between 14 March 2000 and 7 January 2007 these social security payments were deposited into the account of the applicant’s son at the Commonwealth Bank of Australia. The applicant was a signatory to that account. Between March 2000 and January 2007 the applicant was employed, initially part-time, but later on a full-time basis, with Image Technology Centre Pty Ltd. Her income from that employment was paid into a Commonwealth Bank account in her own name. During that period of nearly seven years the applicant earned over $228,000 from her employment, which she failed to declare to the Commonwealth. As a result, $75,075 was overpaid to the applicant by way of Parenting Payment Single.
6 The five charges relate to this single course of conduct. The different offences arise because of changes in the legislation. The dates of the s 29B offences are 14 March 2000 to 12 September 2000 and 10 October 2000 to 22 May 2001. The dates of the Criminal Code offences are 23 May 2001 to 5 June 2001, 3 July 2001 to 28 December 2004, and 25 January 2005 to 7 January 2007.
7 The offences came to light when officers from Centrelink cross-matched information with the Australian Tax Office.
8 On 16 July 2008 an application for leave to appeal was filed on behalf of the applicant. The grounds of appeal were as follows:
1. Her Honour erred by failing to mitigate the applicant’s sentences in a significant way to reflect the fact that she was, at relevant times, suffering from depression and a dissociative behavioural state.
2. Her Honour erred by failing to mitigate the applicant’s sentences because of the hardship that would be caused by her separation from her son.
3. Her Honour erred by failing to take into account the applicant’s remorse, her rehabilitation and the fact that she is unlikely to re-offend.
4. The two sentences of 18 months and their associated recognisance release orders of 9 months’ duration are both manifestly excessive.
5. The total effective sentence is manifestly excessive.
9 Before discussing these grounds it is appropriate to say something about the applicant’s background and the circumstances in which the offences were committed.
10 The applicant is now 32 years old, having been born on 24 February 1976. She has no prior convictions of any nature. Her family background was supportive and her childhood essentially uneventful, at least until she met the man who was to become her husband. This apparently happened in her second year of high school. In due course they became engaged, and on the insistence of her fiancé’s mother, the applicant left school. They were married less than a year later when the applicant was 18 years old. The applicant’s mother-in-law was a controlling, difficult woman who was clearly hostile towards the applicant and over-intrusive in the marriage relationship. In September 1995 the applicant’s son Joseph (Joey) was born. It appears that the applicant suffered from post-partum depression for which she was inadequately treated. When Joey was about three months old, her husband told her that she would have to leave the marital home because his mother wanted it that way. The applicant and her son moved in with her parents where they remained until she went into custody in relation to these matters. Her son is currently being cared for by her parents.
11 Two psychiatric reports of Dr Robert Hampshire were before the sentencing judge. The first, dated 7 August 2007, described the applicant as being severely depressed. He also commented that she had symptoms of post-traumatic stress disorder arising from the traumatic experiences of her mother-in-law and the separation from her husband. However he was not prepared to make a firm diagnosis of post-traumatic stress disorder. Nevertheless, he went on to opine that the dissociation which accompanies post-traumatic stress disorder might well have been involved in her offending behaviour. He expressed the belief that the applicant did not deliberately try and defraud Centrelink, but
- “… rather went on in this behaviourally dissociative state not really focussing on the significance or criminality in the way she was behaving in that manner. And she did the best for her child, traumatised and depressed as she was and is.”
12 Dr Hampshire considered that the applicant’s prognosis was good. In his later report, dated 14 February 2008, he said that her depression had settled significantly but not completely.
13 Also before the sentencing judge was a reference from the applicant’s employer attesting, in highly favourable terms, to her participation in the Company’s enterprises and to her “mature attitude”. She was described as a valued employee who will play an important role in the future of the company.
14 After being charged with these offences, the applicant started making restitution payments of $350 per week. By the time of sentence the amount payable to the Commonwealth was reduced to $70,109.37.
15 The applicant herself gave evidence in the sentencing proceedings. She became so distressed when starting to describe her background that it was agreed that the account contained in Dr Hampshire’s report would suffice for these purposes. The offender said that she and her son had continued to live with her parents since her separation from her husband. They cared for her son whilst she was at work. However she devoted her weekends to him and she was the central person in his life. He saw little of his father. She said that she knew that she was breaking the law in not telling Centrelink about her employment but did not realise the consequences. She was asked whether she ever considered calling Centrelink and telling them that she was employed. She said: “I wanted to but I was in such a hole I didn’t know how to get out of it. I didn’t know how to get out, I was so scared.” She also said: “I never did it to be rich. I only did it to survive.”
16 In cross-examination however, it became clear that significant amounts had been paid for items which went beyond mere living expenses; at clothing stores, hair salons, jewellery shops and makeup salons. In addition, the applicant purchased a new Toyota Celica vehicle. As the sentencing judge commented, the applicant’s lifestyle indicated a degree of extravagance, and her purchases went considerably beyond what was necessary for basic survival.
17 This takes me to her Honour’s remarks on sentence. Her Honour, having given details of the various offences, turned to the applicant’s personal history. Her Honour regarded Dr Hampshire’s report as lacking in professional objectivity and written in such sympathetic and partial terms that he had assumed the role of advocate rather than expert. Accordingly, the weight to be attached to his report was reduced. Her Honour referred to the fact that the applicant maintained separate bank accounts for the receipt of her employment income and the receipt of the social security benefits and concluded that the applicant did not commit the offences in a dissociated state or disabled by depression so as to mitigate her culpability in any significant way.
18 Her Honour noted the applicant’s early plea of guilty for which a discount of 25% was specified. Her Honour determined that a full-time custodial sentence was required notwithstanding the applicant’s need for psychiatric treatment and the impact upon her son of her incarceration. In this latter respect she noted that it would be hard for the mother and son to be separated, but that the child would be cared for by his grandparents. The family circumstances did not constitute exceptional hardship. Her Honour then proceeded to impose the sentences referred to earlier.
19 I shall discuss the grounds of appeal sequentially.
Ground one: Her Honour erred by failing to mitigate the applicant’s sentences in significant way to reflect the fact that she was, at relevant times, suffering from depression and a dissociative behavioural state .
20 The applicant submitted that it was not open for the sentencing judge to reject Dr Hampshire’s conclusions as to the circumstances in which the applicant committed these offences. Dr Hampshire’s reports were tendered without objection. The history contained in the doctor’s reports was confirmed on oath by the applicant. The Crown did not raise the issue of bias at the sentencing hearing, nor did her Honour express concerns about this issue during that hearing.
21 The applicant went on to submit that her Honour’s rejection of Dr Hampshire’s opinion as to the relevance of the applicant’s depression and/or dissociative state meant that there was too much emphasis placed on the need for general deterrence. Moreover, the fact that there was a causal link between the applicant’s depressive condition and the commission of these offences meant that there should have been some degree of moderation in penalty. To this extent, this ground is linked with Ground 5.
22 In my view, it was open for the sentencing judge to reach the conclusion that she did in relation to Dr Hampshire’s reports. Her Honour did not reject the doctor’s diagnosis. It was the causal link between the applicant’s mental condition and her offending which her Honour declined to accept. The language of the reports was well capable of supporting her Honour’s views. Moreover, as the Crown pointed out, there was other evidence which was inconsistent with the proposition that the applicant’s offending was related to her depressive condition. These include the reference from her employer which showed that the applicant was a valued employee and a good worker. Further, as her Honour observed, the applicant spent money on a lifestyle which was more extravagant than basic survival. It was not used simply to support her and her son, as she professed in her evidence in chief, but included spending on luxury items. In addition, and very significantly, the applicant was contacted twice by Centrelink in 2005 and 2006 and asked whether she wanted to be registered with a job network. On at least one of these occasions she lied, saying that she was waiting to hear about a job she had applied for.
23 In my opinion it was well open to the sentencing judge to take the approach she did in relation to the applicant’s mental condition. I would not uphold this ground.
Ground two: Her Honour erred by failing to mitigate the applicant’s sentences because of the hardship that would be caused by her separation from her son .
24 The applicant’s son was born in September 1995 and was twelve years old when the applicant was sentenced.
25 The applicant’s submissions refer to s 16A of the Crimes Act 1914 which requires a sentencing court to take into account, inter alia
- (p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
26 Her Honour referred to the hardship that both the applicant and her son would suffer from their separation. However, given that the child will be cared for by his grandparents, who have contributed to his care for most of his life, she determined that these circumstances do not constitute “exceptional hardship” so as to make this a relevant consideration.
27 The applicant submits that, in the light of s 16A(p), this was an erroneous approach and the separation of the applicant from her family was a matter which should have been taken into account in mitigating the length of the sentence. The applicant’s counsel, in his oral submissions, did not seek to urge that the hardship to the applicant’s son amounted to exceptional circumstances; rather that the hardship to the applicant herself, caused by the separation from her son, should have “led her Honour to be a little more understanding and mitigate the sentence by some margin”.
28 It has now been established that, in spite of the apparently broad terms of s 16A(p), exceptional circumstances are required before hardship to another person will reduce an otherwise appropriate sentence. In this case the applicant’s son, who is now 13, will continue to live with the people who have been his primary carers during the working week when his mother has been in employment. In my view the trial judge was correct in finding that the circumstances of this case did not constitute “exceptional hardship”. As to the submissions relating to the hardship to the applicant, this more appropriately falls under the purview of Ground 5.
29 I would not uphold this ground.
Ground three: Her Honour erred by failing to take into account the applicant’s remorse, her rehabilitation and the fact that she is unlikely to re-offend .
30 The applicant submits that there was nothing in her Honour’s sentencing remarks which suggested that her Honour moderated the sentences imposed upon the applicant in order to reflect the fact that the applicant was largely rehabilitated and therefore unlikely to re-offend, with the result that personal deterrence ceased to be a significant factor on sentence. This in turn should have led, the applicant submitted, to a term of imprisonment substantially lower than the one that was imposed.
31 I do not propose to discuss this ground at any length. Certainly, her Honour did not refer in terms to the applicant’s remorse. She did, however, refer to the fact that the applicant had already paid approximately $5,000 to Centrelink by the time she was sentenced. Her Honour referred to the general subjective matters raised by the applicant’s situation.
32 In all the circumstances, I can find no substance in this ground. As with the two previous grounds, it essentially raises issues relating to the length of the overall sentence, and is therefore more appropriately dealt with under Ground 5.
Grounds four and five:
Five: The total effective sentence is manifestly excessive .Four: The two sentences of 18 months and their associated recognisance release orders of 9 months’ duration are both manifestly excessive .
33 These two grounds were argued together, with the main emphasis being placed on Ground 5.
34 The applicant submitted that the sentences of 18 months imprisonment in relation to the second and third charges under the Criminal Code was excessive in the circumstances, particularly given the “very modest” sentences imposed in relation to the three previous counts. However, there were good reasons for this disparity. The maximum sentence in relation to the s 29B offences was two years imprisonment as opposed to five years for the Criminal Code offences. The total amounts involved in the first three charges amounted to a little over $10,000 whereas the last two involved nearly $65,000. The first three charges covered periods between March 2000 and June 2001. The final two charges covered the period from July 2001 to January 2007. Accordingly the level of criminality was far greater in relation to the last two charges.
35 In my view the pattern of sentences was entirely appropriate. I can find no substance in Ground 4.
36 This takes me to Ground 5, which in many respects constituted the nub of the matters relied upon by the applicant. Essentially the argument advanced by the applicant was that the total effective sentence of two years with a non-parole period of fifteen months was towards the top of the range for this type of offending conduct, whereas the applicant’s circumstances should have placed her lower down the range. It was submitted that many offences under the legislation involved significantly greater levels of dishonesty than that which had been displayed by the applicant, such as using a false name or creating false documents in order to defraud the Commonwealth.
37 There is, in my view, a strong correlation between the matters discussed under Ground 1 and the appropriateness of the overall sentence imposed on the applicant. Once the sentencing judge had rejected the proposition that the applicant’s offending was caused by her mental condition, then a very serious picture emerged. I do not propose to go again through the details of the offences. However, the offending behaviour lasted for nearly seven years and involved a very significant amount of money. Much of it was spent in a manner that represented a deal of extravagance. Once any suggestion of mental illness was removed, general deterrence became a highly significant consideration, as it normally is, and needs to be, in offences of this nature. Certainly, the overall sentence was in the upper range for offences of this kind. However, in my view, the circumstances of the offending placed it in that range.
38 I would not uphold this ground.
39 In the result I would grant leave to appeal but dismiss the appeal.
6
0
2