Mattingly v Hutcheson[2012] QDC 205

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an appeal under section 222 of the Justices Act 1886 (Qld) against the sentence imposed on the appellant upon her plea of guilty before the Goondiwindi Magistrates' Court on 9 June 2010 to two charges of obtaining a financial advantage from the Commonwealth; namely social security payments knowing or believing that she was not entitled to receive it contrary to section 135.2(1) of the Criminal Code (Commonwealth).

The appellant represented herself on this occasion. The learned sentencing Magistrate imposed a penalty of 12 months imprisonment to be released on parole after a period of four months. A parole release date was set at 9 October 2010.

It appears that her Honour imposed one global penalty in respect of the offences pursuant to section 4K(4) of the Crimes Act 1914 (Commonwealth). The Magistrate also ordered the appellant pay reparation of the balance of the overpayment ($5292.63) to the Commonwealth and costs of the summons ($71.70).

Because this is an appeal from a sentence imposed upon a plea of guilty it is brought on the ground that it was manifestly excessive pursuant to section 222(2) of the Justices Act. Although there are additional grounds of appeal by which it is asserted that the sentencing process miscarried, it is unnecessary to consider these in circumstances where the respondent concedes that her Honour erred in the exercise of her sentencing discretion and the appeal against sentence be allowed.

It is therefore submitted by consent that the Magistrate's sentence be set aside and a new sentence substituted in terms of the draft order which has been placed before me today.

The basis of the concession is that the Magistrate erred in purporting to impose a non-parole period in connection with a sentence of imprisonment that was less than three years. Section 19AB of the Crimes Act states that only in circumstances where the aggregate head sentence exceeds three years imprisonment is the sentencing court empowered to fix a non-parole period.

In all other cases where imprisonment is imposed the only mechanism by which the offender may be afforded early release is a recognisance release order.

The error of the Magistrate becomes even more patent when the order that she made in Court to impose a non-parole period is compared to the endorsement on the Court file which is an order that the appellant be convicted and sentenced to 12 months imprisonment to be released after serving four months with the release to be on a recognisance to be of good behaviour for a period of two years and the value of that recognisance is $2000.

Subsequently, an order and recognisance under paragraph 20(1)(b) of the Crimes Act was prepared and signed by the appellant. The endorsement on the file and the recognisance signed by the appellant is completely at odds with the sentence that the learned Magistrate actually imposed. This confirms that the Magistrate fell into error in the sentence that she imposed.

In addition, the respondent also fairly has referred me to a psychological report dated 6 September 2010 by Ms Yoxall which it is conceded may well have satisfied the sentencing Magistrate that a penalty involving a term of imprisonment be wholly served in the community would have been the appropriate penalty.

In these circumstances I am entitled to exercise the sentencing discretion afresh. It is accepted by the respondent that in doing so I'm entitled to take the report into account. I also note that a period of approximately two years has now passed since the sentence was imposed.

Because of the consent orders which are sought by the party and because on my own view of the matter, having considered the psychological report, I agree that those orders are appropriate.

It is not necessary for me to summarise the facts of the offending. It is, suffice to say, that the conduct of the appellant was a serious transgression of Commonwealth law and the application of the principle of general deterrence makes a sentence of imprisonment the only appropriate sentence in this case.

The issue is whether the appellant should serve any actual term of imprisonment as originally ordered by the Magistrate or serve the sentence of imprisonment in the community.

I consider that the report demonstrated a deep-seated and longstanding psychiatric disorder suffered by the appellant which in a large part explains her offending. That disorder is diagnosed as being a complex and chronic post traumatic stress disorder and major depressive disorder. The symptoms and impairment are described as serious. This diagnosis has been made in accordance with DSM-IV which recognises these disorders.

As was recognised by Fryberg J with whom McPherson JA agreed in R v Neumann; ex parte A-G (Qld) [2005] QCA 362 at [27] as observed in R v Elliott [2000] QCA 267 Davies and Thomas JJA (McPherson JA concurring at 11): "Mental abnormality falling short of insanity may be a significant mitigating factor. Apart from the question of culpability it makes it difficult for the court to apply a factor such as general deterrence." These decisions were applied in R v Grehan [2010] QCA 42.

For this reason I consider the appellant's disorder at the time of offending and her appearance at the sentencing proceedings is a significant mitigating factor reducing her moral culpability and the deliberation which attended her criminal conduct and makes general deterrence a factor of less weight. A factor which must be taken into account under section 16A(2)(m) of the Crimes Act is the mental condition of the appellant.

This also provides an explanation for her statements which caused the Magistrate to conclude the appellant did not fully appreciate or accept that she engaged in her offending conduct or, as the respondent puts it, for her attempt to distance herself from the offending by saying that she thought she was correctly declaring her income to her employer.

For these reasons I have concluded that while a sentence of imprisonment was the only appropriate sentence in the circumstances of this case, a sentence to be actually served as opposed to be served in the community was not an appropriate sentence.

The comparative sentences which were referred to in the outline of argument by the respondent suggests that a sentence of imprisonment within the range of six to 12 months is appropriate to adequately penalise the offending in this case.

Accordingly, I would have come to the conclusion independent of the consent orders that a sentence of imprisonment of 12 months is the appropriate penalty to be imposed, but for the reasons that I have given that the sentence be actually served in the community by way of a recognisance release order.

The respondent had initially submitted that a condition of that recognisance release order be that the appellant be admitted to probation. However, having regard to the passage of time since the sentence during which the appellant has committed no further offence and has engaged in psychological treatment and is assessed as a low risk of offending, I do not consider that there is any reason to make a probation order a condition of such recognisance release order.

The respondent now accepts that view and does not insist on that as part of the consent order which has been placed before me.

Accordingly, based both on the consent of the parties and upon my own independent consideration of the circumstances of this case I make the orders as per draft amended and initialled by me and dated today, the 28th of May 2012, and placed with the papers.

The orders of the Court are that: (1) the appeal against the sentence imposed by the learned Magistrate in the Magistrates' Court at Goondiwindi on 9 June 2010 is allowed; (2) the sentence of imprisonment imposed by the learned Magistrate is set aside; (3) in substitution for the sentence of imprisonment by the learned Magistrate it is ordered that in respect of each of the two charges to which the appellant pleaded guilty she be sentenced to 12 months imprisonment (to be served concurrently) but by order it is directed that she be released forthwith upon her giving security within 14 days of this date by recognisance in the sum of $1000 condition that she be of good behaviour for two years; (4) the orders of reparation and the costs of the summons made by the learned Magistrate on 9 June 2010 stand.

Unless there's anything further, gentlemen, that is the order of the Court.

MR DIGHT: No, your Honour.

MR PORRITT: Could I just ask through your Honour if your Honour's Associate could take the file and the draft order to Registry promptly so that Mr Dight can get on his way.

HIS HONOUR: Yes. I will indicate that my Associate can advise the Registry of the priority that needs to be given to this matter.

MR PORRITT: Thank you, your Honour.

HIS HONOUR: It should be recognised, of course, that the Court Registry has been one of the parts of the justice system which is having to effect cost savings which, as Mr Dight - if not you, Mr Porritt - may have found sometimes has the result that counter services, through no fault of the Registry, are not as expeditious as they might once have been, but bearing those things in mind I will do the best I can to prioritise the matter and to allow you to get on your way.

MR DIGHT: Thank you, your Honour.

HIS HONOUR: All right. You're both excused. I'll give the order to my Associate so she can start proceeding.

MR PORRITT: Thank you, your Honour.