Smith v Benson[2010] QDC 189

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an appeal by Ms Smith against the sentence imposed by an Acting Magistrate at Emerald for two summary offences under section 135.2(1) of the Commonwealth Criminal Code of obtaining a financial advantage, namely social security payments from the Commonwealth, knowing or believing that she was not eligible to receive that financial advantage.

The first charge was for the period between 12 March 2003 and 27 September 2004, and the second charge was for the period between 28 September 2004 and 12 February 2007.  As the Crown Prosecutor explained, the offending was a continuous course of conduct, but there were two charges due to a change in the offence provisions; in effect, there was one offence.

The maximum penalty for this offence is 12 months imprisonment and/or a $6,600 fine.  The appellant pleaded guilty to these offences on 28 October 2009.  The Acting Magistrate ordered that she be convicted and sentenced to 12 months imprisonment, to be released after serving one month upon entering into a recognisance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years and subject to probation for a period of 12 months.

The probation order included a special condition that she submit herself to such medical, psychiatric or psychological treatment as directed by a community Correctional Officer.  She was further ordered under section 21B of the Crimes Act to pay reparation of $28,813. 

The appeal is brought under section 222(2)(c) of the Justices Act 1886 on the ground that the sentence is manifestly excessive.  Before an appellate Court will interfere with the exercise  of the sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him or her, mistook the facts or did not take into account some material consideration: House v. R (1936) 55 CLR 499 at 504-505. 

It is therefore relevant to consider whether the sentence appealed against was outside the sound exercise of the sentencing Court's discretion: Parry v. Mayfield Holdings (Qld) Pty Ltd (2006) QDC 250. 

As has been emphasised by the High Court in the joint judgement of the seven Justices in Lowndes v. R (1999) 195 CLR 665 at 671, a Court of Appeal is not entitled, even if it might not itself have imposed the same sentence, to overturn a sentence imposed in the primary Court unless it can be demonstrated that the sentence is manifestly excessive.

The appellant was 45 years at the time of the sentence.  She was aged between 38 and 42 years at the time of the offending.  She is married and has three children who were all dependants during the charge period.  The charges arise out of the appellant's failure, during a period of 103 fortnights, whilst in receipt of social security benefits, to declare her own and her husband's income correctly to Centrelink. 

Due to the amount of the appellant's and her husband's income, she had a partial entitlement to benefits during 59 fortnights and a nil entitlement in 44 fortnights.  This is a period of almost four years.

During the period of the charges, the appellant was receiving a disability support pension.  She applied for the payment on 16 March 2001 and received the payment continuously from then until the end of the charge period.  She had received Centrelink benefits continuously from 1996, having received a parenting benefit until she commenced on the disability support pension. 

A recipient of a disability support pension is not required to lodge regular continuation forms.  Centrelink does, however, periodically send to recipients benefit letters, which set out various matters, including a reminder of the person's obligations, including that if the person's personal circumstances change, they must advise Centrelink of that change within 14 days. 

Centrelink uses the information supplied by the recipient in response to these reminder notices to assess the correct rate of benefits to be paid to the recipient.  If no declaration is made, Centrelink uses the information supplied on the original application form to assess the rate of benefits payable. 

In this case, Centrelink records indicate that a number of these notices were sent to the appellant during the charge period at the address which she last indicated to Centrelink was her postal address.  It was not suggested on her behalf that these notices were not received. 

The offences were detected by a data match with the ATO.  During the charge period, the appellant and her husband were employed.  She was employed as a casual milk delivery person from 3 March 2003 until 18 January 2005, and again from 28 October 2006 to 20 January 2007.  Her husband was employed by the same company from 27 June 2003 to 18 January 2005.  He worked on a fulltime basis for Centre Hire and Contracting from 24 January 2005 until the end of the charge period.

In August 2004, the appellant contacted Centrelink and gave an estimate of her income and her partner's income as zero.  At that time, they had each been working for over a year.  On 18 January 2006, the appellant and her husband lodged an income and asset update with Centrelink.  In reply to the question, "Are you and/or your partner currently employed?", the appellant answered, "No," and she signed the document.  At this time the appellant's husband was working fulltime for Central Hire and Contracting. 

Notwithstanding these two more proactive steps, the Crown Prosecutor told the Acting Magistrate that it is relevant, it was largely fraud by omission.  The combined gross employment income of the appellant and her husband during the charge period was approximately $217,450.  This income fluctuated from fortnight to fortnight, but averaged about $2,110 between them per fortnight.  About $22,000 of this amount was earned by the appellant, and the remainder was earned by her husband. 

During the charge period, the appellant and her husband declared $4,127.54 in employment income to Centrelink.  Centrelink calculated that the appellant was entitled to receive $12,420.23 of the $41,233.23 in benefits she received during the period.  The total overpayment attributable to the appellant's conduct was $28,813.  At the date of sentence, the appellant had made no repayments; therefore that total amount remained outstanding.

As part of the investigation, Centrelink wrote to the appellant and invited her to participate in a formal interview.  She did not respond. 

The Crown Prosecutor correctly submitted to the Acting Magistrate that: "The superior Courts, in recent years, have clearly expressed the view that social security fraud is to be viewed seriously because it's easy to commit, difficult to detect and involves a system which relies on the honesty of those who participate.  Deterrent sentences are therefore called for, but any such sentences must be balanced against the defendant's personal circumstances in each case."

The prosecution submitted with reference to section 17A of the Crimes Act 1914 that imprisonment is the only appropriate sentence and an appropriate penalty would be a head sentence in the range of 12 months with a period of about two months to serve.  The Crown Prosecutor noted that an intensive correction order would also be in range.  This would appear to be a reference to the decision of the Chief Judge in Rosales v. Carstens, No. D389 of 2004, which was one of three comparative sentences in the schedule tendered. 

However, the Prosecutor added that because of health problems the appellant had been assessed as not suitable because she was unable to do the community service components.  This was a reference to a probation and parole assessment which was placed before the Acting Magistrate.  His Honour responded, "So community service wouldn't be an appropriate order anyway by the sound of it."

I note that without objection by counsel for the respondent, Mr Smail of Queensland Corrective Services addressed me during the hearing of oral argument on this appeal.  His submissions to the Court are to the effect that the position in relation to community service and her suitability to undertake an intensive correction order remain unchanged as at the date of this hearing, having regard to the suitability of projects available in the Emerald area.

The Prosecutor before the Acting Magistrate particularly stressed the decision of O'Brien DCJ in Groundwater v. Arthur, Appeal No. 21 of 2008 in support of the imposition of an actual period of imprisonment.  The appellant's legal representative submitted to the Acting Magistrate that the mitigating circumstances and the appellant's personal circumstances were such that an actual period of imprisonment would not be imposed.  He argued for her immediate release on a recognisance, with an extensive period of probation. 

He said that since his first involvement, which is noted on the bench charge sheet as 28 July 2009, it was intended to make full reparation but it was wished to deal with both sentence and reparation at the same time so as to be able to enter realistic arrangements based on capacity to pay.  Therefore, he said, it was not a case in which the appellant was lacking remorse.  His submissions focused on her personal circumstances which related to her difficult life.  I adopt the concise summary in the outline of submissions on her behalf for this purpose.

She was the third of six children.  Her mother developed a dependence on alcohol and became incapable of caring for her children so that the appellant had to undertake much of that work.  When she was 15 years old, her mother was killed in a car accident.  Before her mother's death, the appellant and her younger sister were struck by a car, as a result of which her sister suffered and acquired brain injury.  Therefore, the appellant was trying to care for and support her sister.

After the death of their mother, the children were separated.  The appellant was left to fend totally for herself.  From an early age she suffered from extreme migraine, which has been a continuing feature of her life.  She entered an unsuitable relationship with a boyfriend who was violent.  In 1982 at the age of 18, she was diagnosed with cervical cancer, which required her to undergo a biopsy, which has had an affect on her life. 

In 1984 at the age of 20, she fell pregnant and her child was stillborn.  Despite the domestic violence issues, she married her partner.  In 1987 and in 1988, she gave birth to a son and a daughter respectively, but separated from her partner in 1988 as a result of his violence.  They subsequently divorced.

Later that year, she met her current husband and they had a daughter in 1991.  Her current husband has been very supportive of her, despite the difficulties they have experienced throughout life.  However, the appellant continued to have severe migraines which, with the events in her life, have contributed to depression and anxiety, for which she has sought medical help. 

On 31 July 1998, she underwent brain surgery in the hope it would relieve the severe migraines.  It was not completely successful, and left her with side effects, namely a loss of memory and permanently lost feeling in her left arm.  It did not alleviate the migraines, although they were different from her original headaches.  This has contributed to her ongoing depression and anxiety and she had continued with medication. 

She was treated, among other things, with antidepressants to help her symptoms.  This is confirmed by a report from the Exeter Medical Centre, which was tendered on sentence.  The appellant's husband suffered a work-related back injury in 1997 and was unable to work in his usual occupation.  As a result of his injury and the appellant's state of health, they received disability pensions in about 2001. 

They had been living in Tasmania but returned to Capella in Queensland in approximately 2002.  This was precipitated by the appellant's husband's then inability to work and by her being stalked in Tasmania and being assaulted by the stalker, as a result of which she suffered a broken nose. 

In 2004 and again in 2008 the appellant contracted Ross River fever and she continually lived with the symptoms of that condition, which are disability, pain, lethargy, diarrhoea and nausea.  The appellant described it as a constant state of flu over an 18 month period. 

With the consent of the Prosecutor, an affidavit sworn by the appellant on 21 April 2010 was read for the purposes of this appeal.  It demonstrates that she continues to suffer the complications from the Ross River fever and the migraine condition.

The reports tendered on her behalf before the Acting Magistrate included one from the local medical practice, which she had attended since 2003.  This confirms that she has been treated by that practice for depression, posttraumatic stress disorder, migraine, hypertension and chronic back pain.  She was referred to a consultant psychiatrist for the depression and the posttraumatic stress disorder.

A report from a Mr Swarbrick, consultant psychiatrist, was tendered.  It is based on his interview with the appellant and her husband on 14 August 2009.  He says that the appellant told him that she had taken the initial documentation to Centrelink when she and her husband started working again.  However, she had failed to follow up with further details when their incomes changed.  She had become increasingly aware of the overpayments and in an effort to reduce the stress, simply avoided doing anything about it.

Mr Swarbrick frankly challenged her on how this explained making false statements to the organisation.  The appellant responded, "I knew I had to give accurate information, but I didn’t want to deal with it - I stopped opening the mail."  He observes that if it is shown she was suffering from severe depression up to two years previously, then her ability to manage her financial affairs may well have been impaired. 

Although no psychiatric report was tendered on these issues, as indicated there was evidence before the Acting Magistrate that she had been treated for depression and posttraumatic stress disorder since 2003 and had been referred to a consultant psychiatrist as a result.  Mr Swarbrick summarised the appellant's explanation as a failure to inform Centrelink of the change in circumstances because "she felt to overwhelmed and anxious to do so." 

Of particular importance is his opinion that: "I think it is very likely, given the reports of her health issues, that Ms Smith has suffered a long period of depression which could easily have given rise to a sense of hopelessness, significant procrastination - even on issues which could be seen as important - and withdraw from social contact and normal function in the community."

This is based on his experience that people who find themselves in these circumstances often neglect to do things that most people would consider essential, including attending to the usual matters in being a functioning individual in the community. 

His opinion continues: "It is likely that if Ms Smith were significantly depressed, her ability to attend to these matters would have been impeded, both by intellectual and psycho-motor retardation and by heightened states and anxiety and avoidance.  It is probable that in this state, she would have avoided or been evasive of questions and enquiries about her accountability… Such situations can become a vicious spiral in which the anticipated negative consequences of 'doing the right thing' discourage the person from taking action to address the situation - which in turn gets worse the longer it is left.

I am not suggesting that Mr and Ms Smith should be exonerated of their behaviour and responsibilities because of the above possibilities.  Rather, I am suggesting that although they manifestly failed in their responsibilities, there were probably some mitigating issues that encouraged them to simply avoid addressing the issue until it was brought to a head.

They appear to be genuine in their intentions to address the situation.  It is my view that sending either of them to prison would be very likely to jeopardise Ms Smith's somewhat precarious state of mental health…"

The Acting Magistrate approached the exercise of his sentencing discretion by, adopting his terminology, expressly taking into account or having regard to the maximum penalty for the offence; the circumstances of the offence as outlined by the prosecution; the submissions made by the defence, including all reports and documents submitted; the appellant's antecedents, including her age, that she was married with three adult children and had no prior convictions; the appellant's plea of guilty, which he expressly said was in her favour; the appellant's personal circumstances as explained by her solicitor, including her medical and mental health issues; Mr Swarbrick's report, with particular reference to the passages I have quoted, including the possible effect a term of imprisonment would have on her; the report by Community Corrections stating the appellant was unable to do community service work or an intensive correction order, which would include a community service component, noting this was through no fault of her own but because of health issues; the amount and duration of the offending, being $28,813 over a four‑year period; the joint income of the appellant and her husband during this period was about $217,000, of which her income was $22,000; the offence was detected by way of data match; the appellant did not participate in a record of interview; and at the time of sentence, no money had been repaid.

His Honour then referred to the necessity to impose penalties that reflect the seriousness of the appellant's behaviour and to the necessity for a penalty which has a general and specific deterrent effect.  He said: "Any penalty the Court imposes has to act as a deterrent effect on yourself and other persons to discourage them from committing similar offences… if the Courts impose light penalties, it may be seen to give the go-ahead for other persons to commit those offences."

Having stated that he had considered all the options available, and again saying that he had full regard to her solicitor's submissions, he referred to the comparable sentence of Groundwater, where the penalty was 12 months imprisonment, to be released after serving four months and entering into a $3,000 recognisance to be of good behaviour for three years. 

His Honour stated that an appeal against this sentence was dismissed.  He considered that it was held in Groundwater "that that was the appropriate penalty that should have been imposed".  He considered this case to be factually similar to the appellant's case, but noted there were some grounds for saying the penalty for the appellant should be lower because Groundwater continued to offend after being notified of the overpayment.

His Honour then concluded as follows: "Now, the end result is that I am considering a term of imprisonment, and of course, I've considered all other available sentences that can be imposed.  As I say, community service and an intensive correction order are not appropriate.  They can't be imposed because you wouldn’t be able to comply with those orders.  Now, in all the circumstances, I am satisfied that no other sentence is appropriate apart from a term of imprisonment, in my view.  Now, the reasons I consider that is obviously the seriousness of the offence, involving a fraud of over $28,000, almost $29,000, over a four year period, and if any other penalty were imposed, it would not have a deterrent effect on both yourself or other persons, so I intend to impose a term of imprisonment… Now, the order is that you will be convicted and sentenced to a term of imprisonment for 12 months.  I'll order that you be released after serving one month.  Now, I believe the appropriate sentence would have been a term of 12 months to serve three months, but I'll impose an order that you serve only one month, in view of your personal circumstances, as explained by Mr Lumsden.  So in effect, what I'm saying is I believe the penalty should have been 12 months imprisonment, to be released after serving three months because the facts were different to the matter of Groundwater, but in view of what was said by your solicitor, I believe the appropriate penalty is that you be sentenced to 12 months imprisonment to be released after serving one month."

In support of the appeal, Mr Hamlyn-Harris submits on the appellant's behalf that, having regard in particular to the extenuating personal circumstances in which she committed the offences, a sentence should be imposed which does not require an actual term of imprisonment to be served.  Therefore, he submits, the sentence imposed in manifestly excessive in all the circumstances because of her personal circumstances.

In support of this, he also argues that his Honour erred in reasoning as he appears to have done, that because the appellant would not be able to comply with an order of community service or an intensive correction order, no other sentence was appropriate apart from imprisonment.

It is also submitted that his Honour erred in forming the view, in effect, that notwithstanding the appellant's personal circumstances, he had to impose an imprisonment because of the amount involved and the need for deterrence.  Reference is made to Smith v. Spiers (1995) 84 A Crim R 44, especially at 56-51.  I will discuss this case subsequently in this judgment.

Associated with this, it is submitted that his Honour did not take sufficient account of the mitigating factors associated with the appellant's personal circumstances which included her health problems and likely depression.  In support of this, reference is made to Du Randt v. R (2008) NSW CCA 121 at [41]-[44], in which it is submitted the New South Wales Court of Criminal Appeal considered that the health of the accused is an important consideration pursuant to section 16A (2)(m) of the Crimes Act, which requires the Court to have regard, when passing sentence, to the character, antecedents, cultural background, age, means and physical or mental condition of the person to be sentenced.  I will also discuss this decision subsequently.  I simply observe at this point that in that case, the Court was concerned with the applicant's mental health. 

Finally, it was submitted that the comparative cases of Groundwater, Rosales and Andersen v. the Commonwealth Director of Public Prosecutions Appeal No. 4060 of 2005 are consistent with a sentence which does not involve actual custody, having regard to the appellant's particular circumstances.

Accordingly, the submissions on behalf of the appellant, that the sentence of actual imprisonment is manifestly excessive, are based on what are argued to be mitigating factors associated with her personal circumstances.

In response, the respondent refers to the amount and period of the fraud and argues the Acting Magistrate gave due regard to all matters raised upon sentence, including the appellant's medical and mental health problems and the psychologist's report tendered at sentence.

It is also argued the comparative cases show a sentence of imprisonment with time to serve is within range for this type of offence.  It is submitted the cases support a range where custodial sentences or sentences of imprisonment to be served by intensive correction orders are imposed.  In support of this, it is argued the sentencing principles for offences of social security fraud are well established.  These submissions have been confirmed in the oral supplementary submissions which have been made on behalf of the respondent this morning.

As was argued before the sentencing Magistrate, it has been reiterated that having regard to the fact such offences are prevalent, difficult and costly to detect, and the social security system is largely dependant upon honest representation by beneficiaries, deterrence is a primary sentencing consideration.  R v. White (CA No. 411 of 1986) is cited in support of this proposition.  With reference to R v. Holdsworth (CA 94 of 1993), it is said that defrauding the Commonwealth of significant amounts of money should generally lead to a custodial sentence.

Fairly, the passage from R v. Oag (1993) QCA 225 is cited for the proposition that: "The need for deterrence must be balanced against the appellant's circumstances, including his remorse and the problems which his family were experiencing at the time."

However, I am reminded that although personal circumstances may, in appropriate cases, weigh heavily in the balance against the need for deterrence, the Court of Appeal has been repeatedly emphasising the need for deterrence and the imposition of substantial terms of imprisonment where it is unable to identify any significant personal circumstances to justify departing from the usual course.  Reference is made to R v. Hurst (2005) QCA 25. 

I am also reminded of the principle in Lowndes v. R, to which I have referred.  This is particularly in response to the appellant's argument, that the seriousness of the offence can be appropriately recognised by a sentence of 12 months imprisonment with immediate release on recognisance.  In particular, it is said this argument does not go to whether the sentence imposed is manifestly excessive.  It is argued that there is no indication his Honour considered a community service order might have been an appropriate penalty if the appellant had been able to comply with the order. 

The respondent submitted with reference to this: "The Magistrate stated that imprisonment was the only appropriate penalty.  He appears to have considered that it may have been appropriate for the appellant to serve the sentence of imprisonment in the community by way of intensive correction order, but that her health problems made her unable to do the community service component.  As a result, he ordered that the appellant would be required to serve a period of imprisonment in custody."

It is also submitted that there is nothing in the sentencing remarks to indicate the Magistrate believed he was compelled to sentence the appellant to imprisonment due to the amount of the fraud and the need for deterrence, regardless of the appellant's personal circumstances.  Rather, according to the respondent, it is apparent that his Honour gave consideration to a number of the factors in section 16A of the Crimes Act and came to the view that considering the amount and duration of the offending and the need for general and specific deterrence, a sentence of imprisonment was the only appropriate penalty.

In response to the submission that his Honour did not take sufficient account of the mitigating circumstances associated with the appellant's personal circumstances, which included her health issues and likely depression, the appellant says that the Acting Magistrate referred specifically to the appellant's health problems and to Mr Swarbrick's psychological report. 

Further it is submitted that in stating the penalty should have been 12 months imprisonment, to be released after serving three months, his Honour took into account the defence submissions in arriving at the penalty of 12 months imprisonment, to be released after serving one month.  As such, it is asserted he moderated the penalty significantly in light of the appellant's personal circumstances. 

In conclusion, it is submitted the range of sentence for this type of offence is six to 12 months imprisonment, and in the circumstances of this case, the sentence imposed was not manifestly successive.  As I have observed, the substance of these written submissions was confirmed in the short oral submissions made before me this morning on behalf of the respondent.

I do not understand the appellant to argue that a sentence other than a sentence of imprisonment is appropriate in all the circumstances of the case, or that the sentence of 12 months imprisonment imposed is in itself manifestly excessive.  The question which the argument raises is whether a sentence of imprisonment involving actual imprisonment of one month is manifestly excessive.

In addressing this question, I accept that deterrence is the primary sentencing consideration, in accordance with the authorities to which the respondent has referred.  However, as has also been recognised in R v. Oag, this must be balanced against the appellant's personal circumstances. 

In the judgment of Williams J in R v. White, which is quoted by the respondent, his Honour states: "A custodial sentence is clearly the most likely to have the required deterrent effect, but that does not mean that there will not be cases, indeed, perhaps many cases, where factors personal to the offender, under consideration, will warrant or justify the imposition of a non-custodial sentence."

In that case, Williams J, with whom the Chief Justice and Moynihan J agreed, dismissed an appeal by the Director of Public Prosecutions against the imposition of a non‑custodial sentence for five counts of imposition involving about $25,000. 

In R v. Holdsworth, although the judgment of the President of the Court of Appeal was a dissenting one in relation to the penalty to be imposed, he relevantly said: "While deterrence is a significant factor in sentencing in respect of offences such as those of which the respondent is guilty, the need for deterrence must be balanced against other considerations, including, especially in this instance, the point which has been reached in the Court process and the respondent's personal circumstances.  The need for deterrence can be sufficiently met by the imposition of a period of imprisonment which is suspended for a substantial period, during which the respondent must be of good behaviour."

This is a principle of general application, although minds may differ as to how it applies to the circumstances of a particular case.

In R v. Oag, in addition to the passage I have quoted from the respondent's outline of argument, the judgment of the Court constituted by the President, and McPherson and Dowsett JJ also said at page 2:

"However the comparative cases referred to do not make a custodial sentence essential, and due weight must be given to the applicant's personal circumstances."

Immediately before the proposition on page 3 of the judgment, which I have previously quoted from the respondent's outline, their Honours say: "Nonetheless, in the particular circumstances of this case, the applicant should be given a further chance.  Deterrence can be sufficiently achieved by the imposition of a period of imprisonment which is initially suspended for a substantial period, during which the applicant must be of good behaviour."

In the circumstances of that case, an appeal was allowed against a sentence of 18 months imprisonment, to be released after three months upon giving security by way of a $3,000 recognisance to be of good behaviour for three years on four counts of imposition, totalling a little under $19,000, where full restitution had been made with money borrowed by the applicant from his parents.  The Court substituted a sentence of nine months imprisonment with an order for release forthwith on security of $1,000, 80 hours community service and a three year good behaviour bond.

R v. Hurst involved a conviction on a guilty plea on two counts of defrauding the Commonwealth of well over $70,000 over an eight year period.  He was sentenced to three years imprisonment, to be released forthwith upon entering into a recognisance of $1,000, on condition that he be of good behaviour for three years with a reparation order.  The maximum penalty on each count was 10 years imprisonment.  The second offence simply reflected the legislative changes over the period, as in this case. 

At page 7 of the judgment of McMurdo P, with whom Mackenzie J and Chesterman J agreed, her Honour, with reference to White and Oag, observed that: "The authorities nevertheless recognised that in exceptional circumstances, a 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."

However, in that case the mitigating factors were not so compelling as to outweigh the principals of general deterrence, requiring a period of actual custody for such serious offending behaviour.  It was considered that the mitigating factors should have been reflected in an order for his early release from detention after serving a period of actual detention, rather than an order for his release forthwith.

The Court allowed the appeal by the Commonwealth Director of Public Prosecutions, by deleting that part of the order that he be released forthwith, and instead ordered that he be released after serving six months imprisonment.  It was unchallenged that he had a remarkably traumatic life, which according to a psychiatric report, predisposed him to an anxious and depressed mood so that it was difficult for him to cope with the stresses associated with a custodial sentence.

Unlike this case, there was no expressed suggestion that sending Hurst to prison would be very likely to jeopardise his somewhat precarious state of mental health.  In this regard it is relevant to refer to R v. Tacey, an unreported decision of the Queensland Court of Appeal, constituted by Pincus and Davies JJA, and White J, which is conveniently referred to in Smith v. Spiers.

As appears from that decision, Tacey (Unreported, Court of Appeal Queensland, 2 March 1994) was a successful appeal by the Director of Public Prosecutions against the adequacy of a fine of approximately $20,000 for three charges of defrauding the Commonwealth under section 29D of the Crimes Act by avoiding $114,615 tax.  The Court substituted a total fine of $105,000, having referred to a range of circumstances of mitigation, which in its view were not sufficient when taken together to justify a sentence less that one of imprisonment including a period actually to be served.

Their Honours said: "On that evidence, the learned sentencing Judge concluded that there was an unacceptable risk with the stress of prison that the respondent would suffer a stroke, in consequence of which we infer she could die.  It should not be thought that a sentence of imprisonment may be avoided by an offender, merely because she or he has a serious illness, even one involving some risk of death.  In every case, the risk of death or serious deterioration of health must be measured and balanced against those factors which would ordinarily require the imposition of a term of imprisonment.  However, in view of the learned sentencing Judge's conclusion in this case, that there was an unacceptable risk that the respondent would suffer a stroke if sent to gaol, we conclude, though with some hesitation, that the respondent should not be required to serve a term of imprisonment."

This was despite the fact the Court considered that prima facie, the offence called for the imposition of a term of imprisonment and a requirement the respondent serve part of the term.  In the present case, on the psychological evidence of Mr Swarbrick, which has not been challenged, there is an unacceptable risk that the appellant's somewhat precarious state of mental health would be jeopardised if she was sent to gaol. 

The mental state to which I refer is the fact it is very likely, given the reports of her mental health issues, that she has suffered a long period of depression.  Although no psychiatric evidence was called on this issue, there is also unchallenged evidence from the medical practice to which I have referred, that she has attended and been treated since 2003 for depression and posttraumatic stress disorder and had been referred to a consultant psychiatrist regarding this.

According to the report from the Exeter Medical Centre during the period from June 1995 to December 2002, she had anxiety and depression.  Accordingly, at the time of sentence she had a long history of approximately 14 years of depression.  There is nothing in the sentencing Magistrate's decision which suggests that he did not proceed on the basis that her mental condition was at all relevant times as set out in these reports.

In these circumstances, the decision of the New South Wales Court of Criminal Appeal in Du Randt v. R is relevant.  As indicated, it was there held that section 16A (2)(m) of the Crimes Act requires regard to be had to the physical or mental condition of the person to be sentenced.

In this case, the sentencing Magistrate appears to have accepted Mr Swarbrick's report by stating he had regard to it and especially referring to page 5, where the possible effect of imprisonment on her was explained.  If so, he must have accepted there was an unacceptable risk that her somewhat precarious state of mental health would be jeopardised if she was sent to gaol. 

In view of this, as was the case in Tacey, I conclude, not without some hesitation, balancing this against those factors which would ordinarily require the imposition of an actual term of imprisonment, that the appellant should not be required to serve an actual term of imprisonment in this case.  His Honour's decision to impose an actual term of imprisonment appears to have been influenced by his acceptance that her health problems made her unable to do the community service component of an intensive correction order. 

I agree with what is submitted by the respondent at page 9 of the outline of submissions where, as I have already observed, it is said: "The Magistrate stated that imprisonment was the only appropriate penalty.  He appears to have considered that it may have been appropriate for the appellant to serve the sentence of imprisonment in the community by way of an intensive correction order, but her health problems made her unable to do the community service component.  As a result, he ordered that the appellant would be required to serve a period of imprisonment in custody." 

This was in keeping with the concession by the respondent during sentencing submissions that an intensive correction order would be within range.  I consider that in circumstances where the Acting Magistrate appears to have considered that it may have been appropriate for the appellant to serve the sentence of imprisonment in the community, it was an error to order that she serve a period of imprisonment in custody, because her health problems made her unable to do the community service requirement of an intensive correction order.

As submitted on behalf of the appellant, the respondent's sentencing submission was effectively a concession that it would be within proper range not to impose actual imprisonment.  In my view, given the range of sentencing options available under the Crimes Act to enable an appropriate sentence to be structured, to achieve deterrence and to balance mitigatory factors, it is an error to proceed on the basis that an intensive correction order is the only means of achieving this, such as in the absence of an ability to undertake the community service component, through no fault of the appellant, the only alternative sentence was one involving a short period of actual imprisonment. 

As was said in Weetra v. Beshara (1987) 46 SASR 484; 29 A Crim R 407 at 485; 408 per Jacobs ACJ; and at 490-492; 413-415 per Prior J, as cited in Smith v. Spiers at 63, an order for immediate release is part of what is a sentence of imprisonment, even though non-custodial.  Further, I consider that the service of the appellant's sentence in the community, in conjunction with a 12 month probation order, including a requirement that she submit herself to such medical, psychiatric and psychological treatment as directed by a community Corrections Officer is in itself an onerous obligation upon her.

In these circumstances, the need for deterrence is sufficiently met by the imposition of a period of imprisonment, with an immediate release upon entering into a recognisance, conditioned that she be of good behaviour for a period of two years and subject to 12 months probation.

This is not outside the range of sentences which emerges from the comparative sentences to which I have referred.  Of those cases, Groundwater is the only one in which a sentence involving an actual period of imprisonment has been upheld. 

In Rosales and Andersen, such sentences have been set aside and a sentence of imprisonment to be served by an intensive correction order imposed.  However it does not follow that an intensive correction order is the only sentencing option available for serving a sentencing of imprisonment in the community.

As the sentencing Magistrate accepted, Groundwater is a more serious case than this because of his continued offending after having been notified of an overpayment.  However, he was incorrect to say O'Brien DCJ held in that case that the penalty involving four months actual imprisonment was the appropriate penalty that should have been imposed. 

His Honour did not have the actual decision before him.  If he had the opportunity to read it, he would have appreciated the decision was that it cannot be properly argued the sentence fell outside the relevant range and it cannot be argued that it was other than a proper exercise of a sentencing discretion. 

It was therefore an error to arrive at a decision that the appropriate penalty was that the appellant serve one month of actual imprisonment on the basis of reasoning that commenced from the point that the penalty imposed in Groundwater was the appropriate sentence for the circumstances of that case, and then reduce this to a penalty which involved serving three months imprisonment, having regard to the circumstances of this case, and then reducing the time to be served by a further two months in view of her personal circumstances. 

In Rosales, the Chief Judge set aside a sentence of imprisonment that involved being released after serving 10 weeks for a fraud involving $24,000 over 28 months for failure to declare income from employment while in receipt of a parenting payment single, according to her Honour's sentencing remarks.

Reference is also made to the total amount overpaid, being $25,000.  In that case, a false declaration had not been lodged, but the appellant knew that sitting back and receiving benefits while earning money was unlawful.  Although she did not make full admissions, she participated in a record of interview.  She was responsible for the care of a year 2 child and also a mother with rheumatoid arthritis and little English.  The mother could not take care of the child.  There were no other family members who could care for the mother and the child.

The Chief Judge concluded that taking all the circumstances into account, and having regard to the sentencing Magistrate's remarks: "I have no doubt he took all those things into account - but in my view he did not give sufficient weight to the cost to the community of 10 or 12 weeks imprisonment for the appellant, that imprisonment in the community provides, in her circumstances, a very heavy penalty, which is a grave punishment and which would certainly act as a deterrent in my view."

That was not a case in which there was an unacceptable risk that the appellant's somewhat precarious state of mental health would be jeopardised if she was sent to gaol.  There was no issue of such health problems making her unable to do the community service component of an intensive correction order.  To adopt the words of the Chief Judge, because of the appellant's condition in the present case, the sentencing Magistrate did not give sufficient weight to this factor. 

However, her Honour did not have to consider how to address the issue of sentence once she had concluded that sufficient weight had not been given to a relevant factor in the event that an intensive correction order was not open for the reasons existing in this case.  It cannot be concluded in these circumstances that her Honour would have considered a sentence of imprisonment with an immediate release, coupled with a 12 month probation order, was not a heavy penalty which is a grave punishment such as to act as a deterrent. 

In Andersen, Brabazon DCJ set aside a sentence of eight months imprisonment, which required the appellant to serve six weeks actual imprisonment and instead sentenced her to eight months imprisonment to be served concurrently by way of an intensive correction order on two charges that she knowingly received money from Centrelink to which she was not entitled.  The offences took place over four years and related to returning to work without notifying Centrelink.  The overpayment was $19,180, of which she repaid $2,546. 

The sentencing Magistrate took into account the effect of the sentence on her two young children and a prior history of domestic violence.  He made no mention of her mental condition, for which she had been treated.  There was counselling and medication for depression.

Brabazon DCJ made reference to the statements of principle in House v. R and Lowndes v. R and proceeded on the basis that it must be demonstrated the proceedings before the Magistrate had miscarried in some way.  Brabazon DCJ considered the failure by the sentencing Magistrate 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 meant that the matter should be reviewed by the Court and an appropriate sentence imposed. 

Having considered the matters which were not taken into account, his Honour concluded that it was clear a Court was not compelled to send the appellant to prison.  Although he considered the sentence to actually serve six weeks was within the acceptable range, he said the mistake made by the sentencing Court was not considering the possibility or desirability of an intensive correction order.  He considered this to be an order within range.  Therefore, he said, the real choice was between actual imprisonment and an intensive correction order.  All things considered, he decided the intensive correction order was appropriate. 

Again, in that case, there was no suggestion the appellant's mental condition involved an unacceptable risk of a somewhat precarious mental state being jeopardised if sent to gaol.  Further, there was no issue of such health problems making her unable to do the community service requirement of the intensive correction order. 

His Honour did observe at page 11 that he was not sure if a mere community service order is within range, in that standing alone, it may not be severe enough to match the circumstances.  However, he made no comment on whether a probation order would be in range in conjunction with a sentence of imprisonment.  Therefore, it can't be excluded his Honour would have considered such a combined penalty within range, particularly in the circumstances of the present case. 

Further, the sentencing Magistrate, while making reference to page 5 of Mr Swarbrick's report concerning the possible effect of a term of imprisonment on the appellant, made no specific reference to the opinion on the same page of it being likely that if she were significantly depressed, her ability to attend her Centrelink obligations would have been impeded, both by intellectual and psycho-motor retardation and by heightened states and anxiety and avoidance, such that it is probable she would have avoided or been evasive of questions and enquiries about her accountability. 

As such, he suggests there were probably some mitigating issues that encouraged her to avoid addressing the issue until it was brought to a head.  Du Randt v. R and the authorities it applies, such as Leach v. R (2008) NSWCCA 73, R v. Verdins (2007) VSCA 102 and R v. Israil (2002) NSWCCA 255 identify the ways in which mental illness of an offender may be relevant to the sentence to be imposed.  These include the reduction of her moral culpability, as are the claims of general and personal deterrence on the sentencing discretion of the Court reduced.  I particularly refer to the discussion at paragraph [24]-[26].  I also refer to the statements to this effect in R v. Clark [2009] QCA 361 at [27] in the context of a bipolar disorder. 

In this case, the Acting Magistrate accepted the appellant had mental health issues, which on the basis of Mr Swarbrick's report, were likely to have reduced her moral culpability and the claims of general and specific deterrence to an extent.  If his Honour had taken this factor into account, I would have expected some reference, however brief, to have been made to this.  I consider that his Honour was in error in failing to expressly address this issue so as to take it into account in the exercise of his sentencing discretion.  If he had done so, this would have been another factor entitling the appellant to an amelioration of her sentence.

In all these circumstances, despite the sentencing Magistrate's statement that in imposing sentence he took the appellant's personal circumstances into account, including her medical and mental health issues, and had regard to Mr Swarbrick's report, especially where there was an explanation of the possible effect of imprisonment on her, I conclude that balancing the unacceptable risk of her precarious state of mental health being jeopardised if she was sent to gaol against the factors which would ordinarily require the imposition of a sentence of imprisonment, that the appellant should not have been required to serve an actual term of imprisonment. 

Being cognisant of the principle in Lowdnes v. R, I consider that the sentence imposed to be manifestly excessive.  In terms of House v. R, the Acting Magistrate did not give sufficient weight to a material consideration.  Put another way, the sentence imposed was outside the sound exercise of the Court's sentencing discretion. 

As I have identified, his Honour was also in error in ordering the appellant serve a period of imprisonment imposed in custody because her mental health problems made her unable to do community service or an intensive correction order in circumstances which he appears to have considered it may have been appropriate to serve that sentence in the community.  This involved acting on a wrong principle and allowed irrelevant material to guide him within the terms of House. 

He was also in error by not taking into account a material consideration, by failing to take into account in the exercise of his sentencing discretion the likelihood that the appellant's mental health condition had reduced her moral culpability and the claims of general and specific deterrence to an extent.  These two errors in themselves allow me to exercise the sentencing discretion afresh.  In so doing, the appellant should not be sentenced to serve an actual term of imprisonment for the reasons I have identified. 

Accordingly, the order of the Court is:

1. Appeal against sentence allowed
2. The sentence imposed at first instance is varied by deleting that part of the order that the defendant be released after serving one month of the sentence, and instead order she be released forthwith.