Yvonne Rose Gardener v Mark Joseph McCarthy
[1996] QDC 84
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- Yvonne Rose Gardener v Mark Joseph McCarthy[1996] QDC 84
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Yvonne Rose Gardener v Mark Joseph McCarthy[1996] QDC 84
Yvonne Rose Gardener v Mark Joseph McCarthy[1996] QDC 84
DISTRICT COURT | Appeal No 926 of 1996 |
APPELLATE JURISDICTION
JUDGE WOLFE
YVONNE ROSE GARDENER | Appellant |
and
MARK JOSEPH McCARTHY | Respondent |
BRISBANE
DATE 30/04/96
ORDER & BENCH WARRANT
HER HONOUR: This is an appeal pursuant to section 222 of the Justices Act from the sentence imposed on the appellant on 1 March 1996 in the Brisbane Magistrates Court. The appellant pleaded guilty to one charge of knowingly making in writing a false statement in connection with a claim for sole parent pension contrary to section 1344(1)(a) of the Social Security Act 1991 and another count of knowingly obtaining payment of a Social Security payment which was only payable in part contrary to section 1347.
The maximum term of imprisonment - or the maximum penalty in respect of both offences is 12 months' imprisonment. The appellant was sentenced to nine months' imprisonment, however, she had been convicted, again in the Magistrates Court, on 14 January 1994 in respect of an offence against section 1347 of the Social Security Act. Apparently she had been placed on a bond, or a recognisance order was made, and she had also been ordered to make either restitution or a pecuniary penalty.
Now, the amount involved by which she defrauded the Commonwealth is the amount of $2,795.40 and when she was sentenced there was an amount by way of some payments being withheld from Social Security benefits to which she was then entitled, so that at the time of sentence $1,704 was outstanding.
The facts were that she committed the offences for which she was sentenced, and in respect of which the appeal lies, after she had been interviewed in respect of the earlier offence. The old offences, or the earlier offences, had been committed between October 1990 and September 1992. She was interviewed with respect to those in June 1993.
Count 1, which is one of the offences the subject of this appeal, was committed on 19 November 1993, after that interview. As I said, she was sentenced on 14 January 1994 and the offence constituting count 2 was committed between 3 July 1994 and 6 April 1994 when she was on her recognisance.
Now, the facts that were placed before the learned Magistrate would suggest that she had deliberately defrauded the Commonwealth, or she had deliberately breached section 1347 when she submitted forms on about 29 July 1994, 21 October 1994 and 7 April 1995. Under the legislation she was required to advise the Department, when she lodged those forms, if she was in receipt of any other income, and it would seem she knew that and it would also seem that she was then in receipt of about approximately a little over $200 a week from some part-time employment that she had. But she did not disclose that and the scheme under this Act is that where the pensioner earns about $80 a week or more, then the pension is reduced.
It was submitted to the learned Magistrate that at the time she was unwell, that she had also suffered an ectopic pregnancy, that she had to be admitted to hospital for an emergency procedure and that she had subsequent problems after that. It would seem that is a reference to her having been an in-patient at the Royal Brisbane Hospital on 29 and 30 April 1994, before these offences were committed, and again from 9 May 1994 to 14 May.
Evidence was placed before His Worship which would indicate that she had required an operation on both occasions for a very unusual ectopic pregnancy and that she was very unwell. Her doctor reported that her recovery was complicated by a wound infection and that she had been seen in June '94 that year for that problem. Now, there was also evidence that her son, who is about seven - she has another child of 12 and she is the sole supporter of those children - suffers from asthma and requires a steroid puffer.
The learned Magistrate was told that she admitted she had done the wrong thing by not declaring the income she had earned at the time and that she was preoccupied with her own problems and was, it seems, very ill. He was also told that her son was quite ill with asthma and admitted to hospital on a number of occasions and that that was one of the reasons had been presented to the Court when she was sentenced on 14 January 1994 that community service in those circumstances would not have been appropriate.
The learned Magistrate was also informed by her representative that she was obviously aware that she faced a custodial term and that the matter had to be adjourned because she had to make arrangements for her children and at that time those arrangements were unresolved. The learned Magistrate was asked to take into account her plea of guilty, the fact that the overpayment was not a large one, the fact that she had paid the pecuniary penalty ordered to be paid in respect of the order made on 14 January 1994 and was asked not to deal with her for the original offences.
It seems that the learned Magistrate acceded to that submission for he made no order with respect to the breach. Section 20A of the Crimes Act, subsection 5 paragraph (b), provides for the penalty which may be imposed or what action may be taken where there is a breach of a recognisance order and the options are imposing a pecuniary penalty not exceeding 10 penalty units or revoking the order or taking no further action.
Subsection 6 under section 20A provides that where a person who has been discharged or released in pursuance of such an order and is dealt with for such breach, that is for the offences in respect of which that order was made, the Court, in dealing with that person, shall, in addition to any other matters that the Court considers shall be taken into account, take into account the fact that the order was made, anything done under the order, and any other order made in respect of the offence.
As I said, she was sentenced after pleading guilty and saved the community the cost of a trial. That is one of the factors that must be taken into account in sentencing a person. As section 16A of the Crimes Act sets out, in addition to any other matters those matters which the Court must take into account, if they're relevant and known to the Court - those include the nature and circumstances of the offence, other offences that are required or permitted to be taken into account, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character that course of conduct, the degree to which the person has shown contrition by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner, and further, if the person has pleaded guilty to the charge in respect of the offence that fact - that section also refers to the deterrent effect of any such sentence on others and the need to ensure that the person is adequately punished for the offence - the Court was also required to take into account the probable effect that any sentence or order under consideration would have on the person's family or dependents.
I should also refer to section 1353 of the Social Security Act which provides that if a person is convicted of more than one offence against section 1350 the Court may, if it thinks fit, impose one penalty for all offences, but a penalty for all the offences of which a person is convicted must not exceed the sum of the maximum penalties that could be imposed if the penalties were imposed for each offence separately.
The learned prosecutor submitted that the Magistrate had imposed one penalty in respect of those charges and therefore the maximum penalty which could have been imposed was the sum of the maximum penalties for the two charges pursuant to section 1353 and consequently that the sentence of nine months was not manifestly excessive.
Both counsel have referred me to a number of Appellate Court decisions relating to appropriate sentences where Social Security fraud is involved, and indeed the learned Magistrate was referred to some of those decisions: Fenton, appeal number 264 of 1993; Dwyer and Morgan, appeal number 315 of 1993; The Queen against Holdsworth, number 94 of 1993; and the Queen against Oag, appeal number 73 of 1993.
All of those cases involved first offenders, all of them involved greater amounts of money obtained falsely or in breach of the Social Security legislation, some of them involved people who were motivated by greed rather than need. I mention here that the learned prosecutor has not argued that she was motivated by greed but seems to accept that in her circumstances she was motivated by need.
In Oag about $20,000 was involved, although the prisoner had been earning a significant wage. He was sentenced to nine months' imprisonment but an immediate release order was made. There the Court of course said that due weight must be given to the personal circumstances of the appellant. Morgan involved, again a first offence, but $33,000. She was sentenced to six months' imprisonment but in effect only to serve two months. Holdsworth involved an indictable offence, 18 occasions. Although the amount involved was only $5,680, it seemed to be a very determined and concerted course of action involving forgery.
The Court of Appeal held that the appropriate sentence was 12 months but to be released on recognisance after serving three months. There is reference there too to a view that nine to 12 months' imprisonment is appropriate, or might be appropriate, depending on the circumstances, where there has been sustained fraud generally in the range of 5,000 to $8,000.
There are a number of references to Wright where that person committed indictable offences over a period of eight years involving more than $73,000 and was motivated by greed. All that amount had been repaid but the Court of Appeal held that the appropriate sentence was three years to be released after serving 12 months upon entering into the appropriate recognisance.
The Director of Public Prosecutions has submitted that simply because the learned Magistrate did not refer to the personal circumstances of the appellant or to her plea of guilty, that is not sufficient reason to find that he failed to take that into account. That is undoubtedly so, having regard to the circumstances here where the submissions were made to him and that he immediately sentenced her, and it is possible that it is one of those cases such as the Queen and Nina, Court of Criminal Appeal number 164 of 1977 or Tsuchia and Bryant, Court of Appeal number 321 of 1995.
It surely is, as the learned Magistrate said in his reasons, quoting from the Queen and Oag, that:
“The major factor in favour of a custodial sentence is the need for deterrence, especially since the effect of 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.”
And then he went on:
“The need for deterrence must be balanced against the applicant's personal circumstances including his remorse and the problem which his family were experiencing at the time.”
In considering the need for deterrence the learned Magistrate referred not to the need to deter not only others of like minded nature to the defendant, as he described them, but the fact that she had committed offences while on recognisance. He was of the view that a recognisance release order was not applicable because she would not abide by it as she had shown she would commit an offence of a similar nature while on that order. Consequently he said he intended to impose a period of “peremptory” imprisonment in excess of six months for the offence. He then said that the need for personal deterrence to prevent the defendant from committing further offences in particular was the reason why he had come to the view that imprisonment was the only appropriate circumstance. He also made a reparation order, as he called it, and certified that she make reparation to the Department of Social Security by way of money payment in the sum of $1,704.30.
In the Queen and Mark Wright, which is reported in 1994, 74 Australian Criminal Reports 152, in their joint judgment Justice of Appeal Davies and Justice White considered at page 156, in respect of the question there, which was whether the sentence of imprisonment for 12 months was too low and whether the learned sentencing Judge was wrong in not requiring the respondent to actually serve a term of imprisonment but before answering those questions they considered how courts had sentenced for frauds of this kind.
They referred to the two categories of cases, those involving Social Security fraud and those involving taxation fraud. Their analysis of those sentences in those two categories showed that it was difficult to reconcile them. Whereas offenders convicted of Social Security frauds have generally been required to serve terms of imprisonment, even where the amounts involved have been small, the same cannot be said of those convicted of tax frauds, even where the amounts involved have been relatively large.
They considered Oag, Holdsworth and Morgan and Fenton, to which I have referred before, and then at page 157 said:
“The cases contained in the above summary and other cases to which we have referred show a general practice of courts in cases of Social Security or Medicare fraud where the charge under section 29B or 29D of the Crimes Act or under the relevant Social Security legislation to require service of a term of imprisonment except where there are strong mitigating circumstances.”
And then at page 160 they observed this:
“It has been said of the Social Security fraud cases that they are prevalent and that they are difficult to detect. That is undoubtedly true and those factors are important considerations in the decisions to impose custodial terms in those cases, but there is no reason to believe that tax fraud is not prevalent or that it is easier to detect.”
And there they were satisfied that no sentence other than one requiring the person to serve a term of imprisonment would sufficiently reflect the need for general deterrence. They set aside the term of imprisonment of 12 months which had been imposed by the sentencing Judge and which he had ordered to be wholly suspended and substituted that for a term of 18 months. They ordered that he be released, because of some factors to which they had made reference, after he had served three months of the term and upon giving security by recognisance.
There is no doubt, having regard to that case, and to other decisions of the Court, that all these decisions in respect of sentencing for frauds, either Social Security or otherwise, on the Commonwealth, however charged, are useful in considering the appropriate sentence to be imposed, and there is no doubt the learned Magistrate did not err in taking into account the fact of her having committed these offences while she was on recognisance. However, in my view, the sentence was manifestly excessive, even taking into account the previous conviction. The fact that these two offences were committed while she was on recognisance, or one of them, was while she was on recognisance, the other after she had been interviewed by the Authorities.
The fact remains that there are other matters that must be taken into account, firstly, her plea of guilty, secondly, the amount of $2,795, which is the subject of count 2; the subject of count 1 resulted in an overpayment of $179.40, but together with those received under count 2 that amounts to $2,794.40, which is far less than the $5,000-and-over range. However, the course of conduct in respect of count 2 involved three forms, each some months apart, but the payments which she received and to which she was not entitled because of the false information on those forms was received over a period of nine months. However, she has repaid part of that amount, she has repaid all the penalty involved in the first conviction, and the learned Magistrate was correct in emphasising the need for general and personal deterrence and that imprisonment in the circumstances was the only appropriate penalty, however, the sentence was manifestly excessive.
It was the view of the Magistrate that there was no point in her giving security by a recognisance because of her previous behaviour. He does not appear to have made reference to probation or the payment of a pecuniary penalty as a condition for her release or restitution.
In my view, having regard to her personal circumstances, her plea of guilty, the amount involved, the sentence was beyond the appropriate range. I also mention that I was informed that she is, and was at the time of sentence, pregnant, and that the child is due to be born in July. However, the Magistrate was not informed of this fact and obviously that cannot be taken into account in determining whether or not the sentence was excessive, or manifestly excessive, but as Mr Boyle has suggested that it would not be inappropriate to take that factor into account on my re-sentencing her having found the sentence manifestly excessive, I will also have regard to the submissions made on her behalf by Mr Lynch of counsel that there is also some danger of her not presenting at full term but of the child being born prematurely.
Having regard to a conviction for a similar offence and to when these offences were committed while she was on recognisance, the appropriate sentence would have been, where the maximum penalty is 12 months' imprisonment, six months' imprisonment but that she be released after having served one month. Again, that will be upon giving security by a recognisance in the sum of $500 conditioned that she be of good behaviour for a period of two years, and further, I order that she make restitution in the sum of $1,704.30 to the Department of Social Security, or so much of that amount as still outstanding, or such part of that amount as has not been repaid - so that means one month imprisonment.
...
HER HONOUR: The appeal is allowed. I set aside the orders made by the Magistrate and then I sentence her - is that not the appropriate way?
MR BOYLE: Yes, Your Honour.
HIS HONOUR: Which I have just done, on those terms that - so, as you said, a warrant should issue for her arrest?
MR BOYLE: Yes, Your Honour.
HER HONOUR: I order a warrant issue pursuant to the Criminal Practice Rules?
MR BOYLE: No, it's under the section 231(3) of the Justices Act.
HER HONOUR: But I must make that declaration though as to the time already served.
MR BOYLE: So it is clear, yes, Your Honour.
HER HONOUR: I declare that the appellant has been in custody from 1 March 1996 to 6 March 1996; secondly, that the period spent in such custody is seven days; and thirdly, that such period in custody was time served solely in relation to these offences. So that in effect leaves 21 days.
MR BOYLE: Yes, Your Honour.
HER HONOUR: I order a warrant be issued to arrest the appellant and commit the appellant to prison pursuant to section 231 of the Justices Act and I order that the warrant lie in the Registry for seven days. And that will give the appellant an opportunity to organise her children.
...