Andersen v Director of Public Prosecutions (Cth)
[2006] QDC 216
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Andersen v Director of Public Prosecutions (Cth)[2006] QDC 216
- Add to List
Andersen v Director of Public Prosecutions (Cth)[2006] QDC 216
Andersen v Director of Public Prosecutions (Cth)[2006] QDC 216
DISTRICT COURT | Appeal No 4060 of 2005 |
APPELLATE JURISDICTION
JUDGE BRABAZON QC
BARBARA JANE ANDERSEN | Appellant |
and
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
BRISBANE
..DATE 23/05/2006
JUDGMENT
HIS HONOUR: This is an appeal against a sentence imposed on the 17th of October 2005.
Ms Andersen was then convicted on two charges in relation to Social Security payments. In each case she was sentenced to eight months imprisonment, six weeks actual imprisonment and then a release on a suspended sentence with a recognisance release order in the amount of $2,000 extending over two years. Reparation of $18,232.19 was order plus some costs of $64.30. She appeals about the severity of that sentence.
The two offences each involved the allegation that she knowingly received money from Centrelink to which she was not entitled. Twelve months imprisonment is the maximum in each case.
The offences took place over four years and arose following an injury she had while she was working as a nursing assistant at an RSL nursing home. She had Workcover assistance and also Centrelink payments. She returned to work but did not tell Centrelink about that development. Time passed, and she declared her income to be nil at a time when in fact she had received $63,250. Overall, Centrelink paid benefits of $41,244 when she was actually entitled to $22,064 making an over-payment of $19,180.
By the time of the sentencing, she had refunded $948 leaving a shortfall of $18,232. Yesterday, I was told that she has now repaid $2,546, making a shortfall of $16,634. Those repayments have been at the rate of $200 a month and I am told that she intends to make an increase to $200 a fortnight.
There was reference yesterday to a Garnishee order. Counsel were not entirely sure of the status of such an order, if it actually was an order, or simply an informal arrangement. Perhaps, we are not certain, there is some power in Centrelink to make an arrangement of that kind.
In the Court below it was submitted for the Director that she might be sent to prison. As counsel put it:
“In the circumstances, it is submitted that the only appropriate penalty is one of imprisonment. The comparatives would indicate that a sentence in the range of nine to twelve months would be appropriate with an approximate third of this being actual time served subject to the defendant's circumstances of mitigation”.
The solicitor who appeared for Ms Andersen submitted that the Magistrate might consider a non-custodial sentence or a sentence which is wholly suspended. She suggested that Ms Andersen might do community service as part of her sentence.
The Commonwealth Crimes Act set out the things that the Court has to take into account in such matters. They are seen in sections 16A and 17A. In particular, in the latter section:
“A Court shall not pass a sentence of imprisonment on any person for a Federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case”.
Section 16A sets out a large number of matters which it is said the Court must take into account in so far as they are relevant and known to the Court.
In this case, it appears from the reasons of the learned Magistrate that he considered the factor of deterrence; the over-payments were over a period of time; the amount taken in the order of $19,000; the earlier plea of guilty; the affect on Ms Andersen's two young children; the fact that she had a history of domestic violence beforehand and that she had no prior history of any other criminal offence.
The learned Magistrate did not mention other matters which were raised, particularly by counsel. They are these, Ms Andersen was continuing to work at the RSL, she was earning money from which the re-payments were made and she had good references from the RSL. No consideration was given to any prospect of rehabilitation. No mention was made of her mental condition, though counsel had made reference to that. No mention was made of the absence of evidence to indicate any extravagance or inappropriate expenditure of the money. No mention was made of her treatment as part of her mental condition by a doctor. As counsel said, there was counselling and medication for depression. No actual evidence of that was put forward or a report given but bearing in mind they were submissions on sentence without contradiction, that was a matter that needed to be taken into account.
The above matters were important because they all fell within the requirements of section 16A.
The learned Magistrate in effect said that the cases about earlier sentences in the Courts, which had been provided to him, indicated that:
“Imprisonment is the order of the day”.
However, an examination of the cases shows that that is really not the right impression that one gains, or would have gained, from the cases.
The defence side, that is the solicitor who appeared for Ms Andersen, mentioned no earlier decisions but four at least were mentioned by the Prosecutor. See her references to Smith, Monahan, Bowyer and Mancey. No reference was made in particular to decisions in the Queensland Court of Appeal.
However, a reference to Bowyer, which is a decision of Acting Judge Holmes in the District Court on the 9th of November 1999 and the decision to Monahan by Judge Wilson, 2004 Q2C 010, showed cases were imprisonment was not imposed. But attention was not drawn to the statements to the Court of Appeal which begin with the decision in White and the DPP, CA 411 of 1986, judgment 3rd April 1987. The Court of Appeal in the Queen v Oag, CA73 of 1993, judgment 17 June 1993 and most recently the Queen v Hurst and Commonwealth DPP, judgment 14th of February 2005, C2005, QCA25.
Reference, for example, need only be made to the most recent of those decisions which is Hurst:
“The honesty of those claiming under the welfare system is essential to a successful operation. Offences like these are hard to detect. They lead to a public loss of confidence in the integrity and worth of the social security system and create a risk of de-demonising the genuine and needy in our society who require such assistance from time to time.
Those like Mr Hurst, who intentionally abuse the system unlawfully, obtaining benefits of more than $70,000 over eight years must expect to be sent to prison for a substantial time as a deterrent, not just to them but to others who might be tempted to commit similar offences. Those principles are well established ... the authorities, nevertheless, recognise that in exceptional circumstances the sentencing 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. Compare R v White and R v Oag.”
It therefore can be seen that the cases handed to the learned Magistrate did not really support the proposition that he mentioned about imprisonment being the order of the day. The truth is imprisonment might be the order of the day but attention needs to be paid to all the various factors.
In addition, a schedule which was handed up during this appeal (and which was, I think, substantially similar to the schedule handed to the sentencing Magistrate) reveals an interesting position. At least at the present time there are 57 entries of sentences in the District Court. Forty six of those related to matters where less than $19,000 was wrongly taken.
Twenty seven of those matters where there had been no previous offences, led to no actual time being spent in custody by the convicted person. Where there was some other features or other serious features, actual imprisonment was ordered in 12 cases.
There were only seven cases where there were no previous offences and some real time in prison was ordered. That is enough to demonstrate the incorrect impression that the learned Magistrate had of the state of the authorities.
It is necessary to bear in mind the authority which this Court has to consider and interfere with a sentence of this kind. It is not simply a matter of this Court setting aside an order and imposing a sentence because the Judge here thinks that would be a better thing to do. Rather it must be demonstrated that, to put it shortly, the proceedings below miscarried in some way.
The classic statement of the law dates back to 1936 when it was said in the High Court decision in House v. The King that:
“A sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the Court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the Appellate Court consider that. If they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle; if he allows extraneous or irrelevant matters to guide or affect him; if he mistakes the facts; if he does not take into account some material consideration then his determination should be reviewed and the Appellate Court may exercise his own discretion in substitution for his, if it has the materials for doing so.”
That such is still the law in this country was emphatically underlined by the Full High Court in Lownds v The Queen 1999 195 Commonwealth Law Reports 665 at 671 where this was said:
“The principles according to which an Appellate Court may interfere with such a discretionary judgment by a sentencing Judge are well established. In their application to a Crown appeal against sentence they were summarised ... of particular importance in the present case is the principle in a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the Appellate Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.”
The failure to mention a number of matters required to be considered by section 16A of the Crimes Act and the misapprehension about the state of the authorities means that the matter should be reviewed in this Court and an appropriate sentence imposed.
The matter here has not changed by the admission of a small piece of fresh evidence which was a report by a Dr Shea. It was reported that he had given Mrs Andersen some treatment for depression. It conforms but really does not take the matter further than the statement made from the Bar table by the solicitor in the Magistrates Court.
It is necessary to keep in mind the essential matters which were advanced on Mrs Andersen's behalf in the Magistrates Court and which were not contested. By the time she went to Court she was a 28 year old single woman with two daughters aged nine and six. She had been employed over the last 10 years by the nursing home.
The injury which I have mentioned is recounted, and her failure to, putting it most neutrally, keep Centrelink informed from time to time of her earnings at work. She had difficulties in her personal life. The father of the children and she had a relationship from when she was only 14 years of age. It had been sporadic and “on again off again” in more recent years.
Her parents had been involved in a volatile divorce. There was physical violence in the home which she left to escape. She did not complete year 10 at school. She did her training for the assistant nurse's position and a first aid course and that was her education.
According to her solicitor, she was physically and mentally abused by the father of the children but tried to make the relationship work for their sake. She moved in with her mother to escape his abuse and then she struggled financially receiving little, if any, financial help from him. That is why she went to Centrelink.
Instances of violence were recounted when her partner was with her, including the fact that he attempted to commit suicide but failed in her presence. On a later occasion he put a firearm to her head and pulled the trigger. She did not know at the time that it was indeed unloaded. The police were called. On that occasion her difficulties led to a domestic violence order being made against him.
Perhaps of some significance is that her youngest daughter was seriously injured in a horse riding incident. It seems that she recovered. It also seems, which is perhaps unusual and therefore more striking, that she was the subject of violence by one of her brothers. An incident in 1993 which led to her receiving nine stitches in her forehead. Her brother was charged with an offence and she has not spoken to him since.
In March 1994 there was an incident when a man broke into her house. The police were involved. The facts led her to fear that he was aware of her role with the police and she feared that he would return. All of those things together led to her being treated by Dr Shea between 2000 and 2004. She was given counselling and anti depressant medication.
I have already mentioned her position with the RSL. Her references from that source were good ones. Apart from her mother's assistance, she has always been and was the children's sole caregiver and she found, not surprisingly, distress in being a situation in which she might be sent to prison.
It is true that usually the hardship to a family including children is not taken into account unless it is exceptional. However, it may be doubted if the Crimes Act section 16A requires such a high standard, because it is said that the Court must take into account, “the probable effects of any sentence or order under consideration would have on any of the person's family or dependents.”
I have mentioned matters which were not taken into account. In my view, once those matters are taken into account and the pattern in the decided cases is revealed, it is clear that a Court is not compelled to send Mrs Andersen to prison.
I accept that imprisonment of the level ordered here, that is to actually serve six weeks, was within the acceptable range, but the mistake that was made in the Court below was not considering the possibility or desirability of an intensive correction order.
Mention was made of the potential use of an order in this Court. Likewise, that is an order which is within range. I am not sure if a mere community service order is within range in that standing alone it may be not severe enough to match these circumstances. Therefore, the real choice is between actual imprisonment for six weeks and an intensive correction order.
I might also say that there are two other factors to mention. One is that Mrs Andersen is pregnant with a third child at the present time and the baby is due on the 24th of July this year. However, I think that is of no relevance at all to the merits of her present position. It should not be regarded as any impediment to sending her to prison is that is the appropriate order. The other factor is this. She was sent to prison for five days after her conviction and then obtained bail, and I think that should be taken into account.
All things considered, the appropriate order is an intensive correction order, provided of course that she is prepared to agree to undertake it, it being an onerous order and indeed, the effect of it would be that eight months as a term of imprisonment, which was not challenged, would remain and be the period of the intensive correction order.
Now, Mr Ryan, I imagine that she understands because of explanations what all this means.
MR RYAN: Yes, your Honour. I've explained in some detail to her the effect of the order and she's given me instructions that she would consent to the making of that order.
HIS HONOUR: All right. Well, can I just go through then what I think are the necessary terms of an appropriate order and might ask her formally at the end.
MR RYAN: Yes.
HIS HONOUR: And you and indeed the Prosecutor can tell me if I've overlooked any matter. Thank you for that.
HIS HONOUR: These then are the formal orders, subject to any matters mentioned by counsel. The appeal is allowed. Set aside the sentence of the 17th of October 2005. Order that convictions be recorded. For each offence eight months' imprisonment to be served concurrently by way of an intensive correction order.
With respect to the intensive correction order, the conditions in section 114 of the Penalties and Sentences Act apply. That is to say, she must not commit another offence during the period of the order. She must report to an authorised Corrective Services Officer at Goodna today, 23rd May 2006.
She must report to and receive visits from an authorised Corrective Services Officer at least twice in each week that the order is in force. She must take part in counselling and satisfactorily attend other programs as directed by the Court or an authorised Corrective Services Officer during the period of the order.
She must perform in a satisfactory way community service that the officer directs during the period of the order. She must during the period of the order, if the authorised Corrective Services Officer directs, reside at community residential facilities for periods not longer than seven days at a time, as the officer directs.
She must notify that officer of every change of her place of residence or employment within two business days after the change happens.
She must not leave or stay out of Queensland without the permission of the officer and she must comply with every reasonable direction of the officer.
Now, I don't believe any additional requirements are sought by either of you. I noted it is possible to make an order about restitution of property but it's probably not desirable to attempt to make another order in this case - I don't imagine it is. There's a reparation order.
MR RYAN: Yes, and there's no appeal against the reparation order so-----
HIS HONOUR: No. So perhaps I‘ll say nothing more about that. Now, Mr Ryan, your client's in Court, I think.
MR RYAN: She is, your Honour, yes.
HIS HONOUR: All right.
MR RYAN: May I just approach her and ensure that she understands that so that I can convey that to the Court?
HIS HONOUR: Yes. And when you've done that, there's a couple of things I want to say to her.
MR RYAN: She's told me, your Honour, that she understands the conditions of the order and that she would consent to an order in those terms.
HIS HONOUR: All right. Now, Ms Bentley, did you want to say anything more about the form of the order?
MS BENTLEY: No, thank you, your Honour.
HIS HONOUR: All right. Now, your client, Mr Ryan, will understand that an intensive correction order means something far more than her walking - or far different from her walking free from this Court today. She is today sentenced to, in effect, a term of imprisonment to eight months, and I think I said, did I not, or I hope I said that a conviction was recorded-----
MR RYAN: Yes, you did.
HIS HONOUR: -----as it has to be. Did I say that before?
MR RYAN: Yes, you did.
HIS HONOUR: I did say a conviction is recorded which is a public thing against her name. If anyone inquires or is entitled to know, they will know that she's been sentenced to eight months' imprisonment for a serious offence. She has to serve it as the Act says in the community but there are onerous conditions. If she does not obey them, she will find herself in Court and very likely if it's serious enough be returned to prison.
Upon the completion of the time and if she does it satisfactorily, she will then be able to regard herself as no longer having a threat over her head of going back to prison, and I am sure you have explained those things to her.
MR RYAN: Yes. I intend to actually reinforce them giving your Honour's comments as well.
HIS HONOUR: All right. Well, there being nothing further then, we'll adjourn.
-----