DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant pleaded guilty before a Magistrate at Southport on 3 April 2003 to four charges involving the wrongful receipt of Social Security payments during various periods between July 2000 and October 2001. The total amount of the payments was $17,687.73, which had been repaid to Centrelink in full before sentencing by the Magistrate.

2. [2]
   The appellant is 39 and had no criminal history. He began receiving a Carer’s allowance in February 2000 while looking after his sick mother. He ceased providing that care in July 2000 when she was admitted to a nursing home but continued to receive payments and did not inform Centrelink of the relevant change in his, and his mother’s circumstances. He was convicted and sentenced to 12 months’ imprisonment, with an order that he be released after two months upon giving security by recognisance in the sum of $2,000.00 to comply with the condition that he be of good behaviour for a period of two years. He served seven days of that sentence before obtaining bail.

3. [3]
   There are two principal issues in the appeal: whether undue weight was given to the importance of general deterrence in sentencing for offences of this kind; and, in any event, whether insufficient weight was given to evidence the appellant was suffering from a mental disorder at the time of his offending. A factual issue also arose: whether conflicting submissions about the extent of the appellant’s cooperation with authorities had been resolved in his favour as, it was submitted, they should have been. It was also suggested insufficient weight had been given to the fact the appellant had made full restitution by the time of sentencing.

4. [4]
   An appeal of this kind is to be approached on the basis that an Appeal Court is not entitled to interfere even if the sentence is not one which it would, itself, have imposed. Rather, the latter must be persuaded that the sentence is manifestly excessive, or that there are some circumstances which show that the Magistrate acted under a misapprehension of fact, or on some wrong principle in imposing sentence^[1].

5. [5]
   The Prosecutor informed the Magistrate that the offence had been detected following a random review by Centrelink and the defendant had been invited, by letter, to take part in an interview with Centrelink officers to which he did not respond. The solicitor appearing for the appellant told the Magistrate, however, that the appellant had gone to Centrelink and made full admissions to the investigating officer at the time. The prosecution did not demur from that submission. The Magistrate said:

The offences of this nature are difficult to detect and it has been pointed out by the Prosecutor that detection really depended upon your voluntary disclosure of a change in circumstances when your mother went to the residential nursing home.

Thus the offences were detected not as a result of your initiation, but because of the detection by the random review by Centrelink.  To that extent it could not be said that you voluntarily desisted from your unlawful conduct^[2].

6. [6]
   Cooperation with authorities, and the making of admissions are matters which often go to mitigation of a sentence but the Magistrate’s failure to specifically mention defence submissions here must be considered in light of the fact the offending continued over a period of about 14 months and, on any view did not cease at the appellant’s instigation. Even if the appellant had been given whatever credit he might have earned by going to the authorities so soon as he became aware they were alert to the possibility of his wrongdoing, that is unlikely to have told in his favour in a significant way and is not, then, a matter which can be categorised as a mistake of fact or law giving rise to a perceived misapplication of the sentencing discretion.

7. [7]
   While repayment of the monies improperly obtained by the appellant is a significant mitigating factor it would not preclude the imposition of a custodial sentence if that was an appropriate sentencing option. The contrary assertion involves the proposition that the commission of this kind of offence might be risk-free for those offenders who are able to make full restitution. It is clear the learned Magistrate gave the matter the proper degree of weight when she said:

I do take into account that you have significantly mitigated by repaying the amounts which were duly owing^[3].

8. [8]
   It is clear from the sentencing remarks that the learned Magistrate placed considerable weight upon the question of general deterrence, as a matter which strongly pointed to the imposition of a custodial sentence. There are a number of cogent reasons why that is not an inappropriate conclusion, supported by considerable authority^[4].  These offences are difficult to detect and, here, were only discovered following a random review.  The appellant did not voluntarily desist from his unlawful conduct, which was part of a continuing series of frauds upon the Department, until an enquiry was made.  The amount involved was substantial.  As Pincus JA and Thomas J said in Holdsworth^[5]:

It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught.  Any notion that the Commonwealth and its Departments are fair game for this type of activity is to be resisted. … Activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud governmental agencies will find an unacceptable risk.

9. [9]
   As the Court of Appeal said in Oag^[6], the need for deterrence must be balanced against the applicant’s personal circumstances, including the degree of his remorse and the problems which his family were experiencing at the time.  Here, the Magistrate took a number of factors of that kind into account but, the appellant specifically contends, failed to give proper weight to his mental condition as it was described in a report from a psychologist, Mr Craig Holt, of 11 March 2003 tendered to her without objection.

10. [10]
    It is plain from the Reasons that the Magistrate had the report in mind, along with a number of other mitigating factors:

Even when I take into account that you have overpaid the amounts and the material contained in the psychologist’s report, and the fact that there is no criminal history, in my view there is no other appropriate penalty other than imprisonment and I accept the prosecution’s submission in that regard^[7].

The question which arises, and upon which the appeal turns, is whether she gave the content and import of the report sufficient weight.

11. [11]
    The existence of a psychiatric or psychological condition which has the effect of reducing the moral culpability of an offender may be a significant mitigating feature. In Parnis v R (1993) 126 ALR 423 the Federal Court (Full Court) considered an appeal from an appellant, sentenced to six months’ imprisonment in relation to each of seven counts of theft who had been suffering from a significant depressive illness at the relevant time, described as “major depression with melancholia”.  Medical evidence established that the appellant “certainly” would have had an impaired capacity to make decisions and that lack of concentration coupled with a self-destructive inclination led to his law-breaking behaviour.  The court (Black CJ, Foster and Higgins JJ) concluded that the sentencing Judge had erred in the exercise of his discretion and that the sentences ought to be set aside because by the appellant’s mental condition at the time of the offences meant there should be a diminution, in the exercise of the sentencing discretion, for the role of the element of general deterrence^[8].  At p 424, the court said:

The principle then is clear enough.  It is correctly stated as follows: that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap (R v Letteri).

 The Full Court also said (at 425) that this principle should not be limited only to cases where the intellectual handicap may be characterised as “severe”.

12. [12]
    Here, the psychologist’s report contains the following passages at pp 4-5:

Mr Monahan reported that he was having difficulty coping whilst caring for his father and then his mother.  He reported social withdrawal.  He described symptoms consistent with depressed and anxious mood.  He reported that he had split up with his wife approximately five years ago and was still suffering from the distress of breaking up his family and the separation from his children.  He reported that he felt that he was responsible for his parents. …

Mr Monahan reported that he had an increased use of alcohol, which appears to be an attempt at self-medicating his anxiety and depression.  He reported that at time he tended to lock himself in the house.  He described symptoms consistent with impaired decision-making, a common co-morbid feature with depression.

Mr Monahan’s presentation, descriptions of his situation and test results are indicative of a person who has experienced a severe depressive episode.  It appears that he tried to self-medicate with alcohol in an attempt to cope with his situation.  His symptoms of social withdrawal, depressed and anxious mood and difficulty making decisions are indicative of a depressive episode that was triggered by the complex situation around him.  It is likely that he was experiencing high levels of stress and was struggling to cope with the degree of difficulty that he was experiencing.  It is common for such persons to experience impaired decision-making and to make errors of judgment (my italics).

13. [13]
    Save for the general comment that the report had been taken into account, there was no specific acknowledgement, in the learned Magistrate’s Reasons, of the effect of this material. It is not clear if she appreciated the potential significance of this evidence, or accorded it appropriate weight. The report is lengthy and, with respect, diffuse. Only a close reading of it draws attention to the conclusions which are significant here. It does not seem the learned Magistrate’s attention was particularly drawn to the relevant passages. In the often fraught atmosphere of a busy Magistrates Court it would be improper, of course, to suggest any criticism of her for a failure to apprehend their importance^[9].

14. [14]
    When this mental illness is placed in the context of a defendant with no previous criminal history who had, when questioned, cooperated with the authorities, made full restitution, and pleaded guilty it is impossible to conclude other than that the mental illness is a significant mitigating feature. The question then arising is whether it ought to have been given weight to a degree which made it a more important factor than the need for deterrence by imposition of an actual custodial sentence. The absence of previous or subsequent offending, the appellant’s difficult circumstances at the time offending began and his mental illness during the relevant period point strongly to the conclusion it should have that effect. I am satisfied the learned Magistrate did, with respect, fail to appreciate the significance of the evidence, or accord it appropriate weight; and, hence, that the imposition of a term of actual imprisonment of two months was a manifestly excessive penalty.

15. [15]
    The appellant served seven days’ imprisonment before his release on bail. In lieu of the sentence imposed by the learned Magistrate a sentence of 6 months, suspended after seven days, and the imposition of the bond is appropriate. For clarity’s sake, it is noted that the period of seven days already spent in custody fulfils the custodial elements of this sentence, and no further imprisonment is to be served.