Hodges v Director of Public Prosecutions (Cth)
[2012] QDC 24
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- Hodges v Director of Public Prosecutions (Cth)[2012] QDC 24
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Hodges v Director of Public Prosecutions (Cth)[2012] QDC 24
Hodges v Director of Public Prosecutions (Cth)[2012] QDC 24
[2012] QDC 24
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE HARRISON
Appeal No 143 of 2011
DONNA MAREE HODGES | Appellant | |
and | ||
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
CAIRNS
DATE 01/02/2012
JUDGMENT
HIS HONOUR: On the 17th of August 2011 the appellant, who is 54 years of age, pleaded guilty in the Magistrates Court at Cairns to two charges of obtaining a financial advantage, namely social security benefits from the Commonwealth, knowing or believing that she was not eligible to receive that financial advantage under section 135.2(1) of the Criminal Code for the Commonwealth.
She was sentenced to nine months' imprisonment, to be released after serving three months upon entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of three years.
She successfully applied for bail on the 18th of August 2011 before me. From memory, at the time I explained to her the same as what I just did to someone else in a matter I was dealing with, that when I do deal with bail applications and fairly short sentences like that, it is not necessarily based on any proper consideration of the merits of success, because at that stage no such information was available.
The total amounts involved in the offending was $30,347.32 which is clearly quite a substantial amount.
In the notice of appeal lodged on the 17th of August 2011 she claimed that the sentence imposed was manifestly excessive and, further, that the learned Magistrate erred by failing to place sufficient weight on her personal circumstances, namely her means and issues relating to her mental health. As argument developed in this case it became apparent that the issue in relation to means was not significant, and the argument centred more around some issues associated with her mental health.
I am conscious of the principles that apply in appeals such as this. It is not for this Court to consider whether or not it reached a different conclusion. Before this Court can interfere, the Court has to be satisfied that the sentence was manifestly excessive or the Magistrate acted on a misapprehension of fact or on some wrong principle in the sentencing process. To this end I was referred, at different times, to the authorities of Lowndes v. The Queen [1999] 195 CLR 665, and Hughes v. Hopwood [1950] QWN 21.
The real thrust of the appellant's submission relates to the way the learned Magistrate dealt with the evidence in relation to the appellant's mental health, both at the time of offending and at the time of sentence, and also as to evidence presented as to certain risks in terms of suicide and/or self-harm if she was sent to gaol.
On sentence, a report from Leanne Foley, a psychologist, dated the 8th of July 2011 was tendered and relied upon. It was not challenged.
The appellant relied on the matters contained in the following paragraphs of that report:
"I concluded Ms Hodges had a long history of major depression with many instances of her presentation with features of this disorder such as low mood, sleep problems, irritability, and emotionality from the effects of stress. Whilst it was clear Ms Hodges had ongoing problems with depression her symptoms and situation did not appear to abate or clear despite prescribed medications, her attendance at counselling and time away from some of her life stressors.
I concluded Ms Hodges continued to have depressive state features and she was likely to meet the criteria of Major Depressive Disorder, in that she had a depressed mood, diminished interest in most things, sleep difficulties, fatigue, feelings of worthlessness and recurrent thoughts of death but without concrete suicide plans.
I concluded Ms Hodges had significant difficulty in facing up to the realities of her life and found it extremely difficult to set concrete future plans and goals for herself and then work constructively towards achieving them. I concluded Ms Hodges had instead opted to 'cocoon' herself in an artificially bolstered comfortable world by denying the existence of her problems and was reluctant to instigate plans to reduce their effects. It would seem Ms Hodges had only sought assistance after she had been advised of her wrongdoing by Centrelink which only further exacerbated her depression. It was clear Ms Hodges' recent attempts at repayment were undertaken to avoid being incarcerated.
I concluded Ms Hodges posed a significant risk of suicide or self-harm relating to the prospect of her being imprisoned. Ms Hodges has had a previous suicide attempt when faced with the realities of life.
The central issue in this matter was that Ms Hodges did not appear to face the realities of her life which resulted in her use of unconventional strategies (e.g.: prostitution and defrauding the Commonwealth) to maintain a lifestyle beyond her financial means. She also failed to address realities of her physical (lump in breast) and mental health difficulties (depression). She was failing to address the real prospect of imprisonment in relation to her offending behaviour, and she wasn't addressing very well her need to repay the debt she'd incurred.
Ms Hodges had previously been diagnosed with major depression and would currently meet the criteria for Major Depressive Episode. It appeared she had long-term issues of depression but was unable or unwilling to access assistance for this condition.
I considered Ms Hodges to be a significant risk of suicide or self-harm, given her poor progress with the treatment of her depression, previous history containing a suicide attempt and her statement that she would rather die than go to jail at her age. These factors needed to be considered and full psychiatric assessment could be carried out as a priority included a medication review and provision of community based support.
It was clear from my reading of the decision that the Magistrate did have regard to her psychological condition.
On page 2 of the decision, which is in fact really the first page, the Magistrate said, from about lines 20 to 30 of the transcript:
"It is clear that you were suffering from depression during the time the offences were committed and you continue to suffer from depression now. That is obviously a significant mitigating factor, as is your early plea of guilty, which I take into account, and because of that early plea of guilty, I impose a lesser penalty."
Counsel for the appellant argues that the learned Magistrate did not take into account the risk of suicide and/or self-harm as referred to in the earlier passages from the report of Leanne Foley. There is no reference to these risks anywhere in the decision. I have already referred to the relevant passages of the report which deal with those risks and I note that it was raised on argument by the solicitor for the appellant who represented her on sentence at page 17 of the transcript from about lines 15 to 20.
The respondent in argument has argued that I can look beyond the decision itself and consider what was discussed in argument during the submissions that were made to the learned Magistrate. To this end, he relied on a decision of Shapley v. Winch [2005] QDC 115, where White DCJ said at pages 6 to 7:
"I feel bound to observe that the fine detail consideration which her Honour the learned District Court Judge gave to the comprehensive case stated and the comprehensive analysis contained in the judgment of the Chief Justice, seemed to me to be far removed from the practicalities of conducting a busy Magistrates Court.
It may be said that his Honour's final sentencing remarks before imposing the penalty are quite brief. However, it is also the case that during the course of submissions there was a considerable degree of dialogue between Mr Silva, who appeared for the appellant, and his Worship. It seems to me that his Worship sufficiently revealed his thinking during the course of that dialogue and in his brief concluding sentencing remarks."
To that end, I have read closely the dialogue between the Prosecutor, the solicitor who represented the appellant and the learned Magistrate, and it seems to me that there was considerable discussion about what I might term the relevance of the psychological condition to her offending. Certainly Ms Foley made it clear that the appellant was suffering from depression and even diagnosed a major depressive disorder that was there at all relevant times.
There was some dialogue, particularly between the learned Magistrate and the solicitor who appeared on behalf of the appellant, as to how that may have affected her conduct when offending, although, on my reading of the transcript, there was no particular discussion about what I might refer to as the serious effects or adverse effects if she was imprisoned, namely the risk of suicide and/or self-harm.
The real issue for me seems to be whether or not any failure to mention those matters is something that I should take into account in deciding whether or not the Magistrate was in error.
To this end the respondent also referred me to other evidence that was placed before the learned Magistrate. There was a report from a Dr Pollard who had dealings with her and he spoke of the need for ongoing psychological treatment if she was incarcerated. Certainly there was relevance to that effect before the learned Magistrate, but she did not appear to deal with that and make any comment to the effect that she had taken those matters into account and, that , there would have been facilities available to assist her with ongoing treatment if she was incarcerated.
So, on my analysis of the decision, it seems that I could safely conclude that even though the comments relative to the condition were relatively brief, the Magistrate, from the dialogue, clearly took into account the relevance of the condition in a causative sense, but it seems to me did not, certainly on the face of it, take into account the likely effects if she was required to serve a term of imprisonment.
On sentence, and again on appeal, the appellant relied heavily on a decision of Irwin DCJ in Smith v. Benson [2010] QDC 189. That involved a case where a woman falsely obtained marginally under $29,000 over a four year period and is somewhat comparable to this. The amount is almost the same and probably would be when one allows for the value of money, although the period was slightly longer. The period in this case as set out in the material was 14 months.
I found this decision helpful, because Irwin DCJ analysed a number of the authorities that are relevant in this particular area. He referred to numerous decisions, both of single Judges and of Courts of Appeal dealing with the significant statements of principle in matters such as this, and also dealing to some extent with comparative sentences.
Early on in the decision, he correctly summarised the approach that an Appeal Court must take in matters such as this, referring to the decision in Lowndes that I mentioned earlier.
He then went on to refer to a number of decisions, and I will briefly go through those because they assist in helping establish the broad principles that do apply in a matter such as this. He mentioned a New South Wales Court of Appeal decision in DuRandt v. R [2008] NSW Court of Appeal 121 and referred there to the question of health and the comments to the effect that health was clearly an important consideration under the relevant factors under section 16A of the Crimes Act.
He referred to a number of comparative Queensland cases where, although amounts , were fairly substantial, periods of actual custody were not always imposed, namely Groundwater v. Arthur, Appeal Number 21 of 2008.
...
HIS HONOUR: Rosales v. Carsons, District Court Number 389 of 2004; and Anderson v. Commonwealth Director of Public Prosecutions, District Court Number 4060 of 2005.
Returning then to general principles, he referred to the decision of R v. White, Court of Appeal Number 411 of 1986. He did that in the context of saying that that case reiterated that offences such as this are prevalent, difficult, and costly to detect; that the social security system is largely dependent upon honest representation by beneficiaries, and that deterrence was a primary sentencing consideration.
He went on to cite a passage from Justice Williams in White where he said:
"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."
He referred also to the decision in R v. Oag [1993] QCA 225 and to the general statement of principle in that case to this effect:
"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."
He referred to Oag again on paragraph 23 of his decision, pointing out that the deterrent aspect on sentencing must be balanced against the appellant's personal circumstances.
Before continuing on with that analysis it is useful that I refer to another decision which was mentioned during the course of argument, namely that of the Court of Appeal in R v. Newton [2010] QCA 101. That is a more recent decision where the Court gave some weight to the fact that the advancement in technology has got to the stage where these matters are perhaps more readily detectable than what they previously were.
Returning to the decision in Smith v. Benson, his Honour also referred to the decision in R v. Hurst [2005] QCA 25 as a statement of a general proposition that in matters such as this, terms of imprisonment are invariably applied unless the Court is able to identify any significant personal circumstances to justify departing from that usual course.
Further on in the decision he came back to Hurst and referred to certain comments of the President, with whom the other members of the Court agreed, where she said:
"The authorities nevertheless recognise 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."
As he noted in Hurst, the Court did not interfere with the custodial sentence there, although it was noted that the defrauding on that occasion was for an amount in excess of $70,000.
He also referred to a decision of the Court of Appeal, an unreported decision of R v. Tacey on the 2nd of March 1994. There, the Court had to deal with an issue which, to some extent, had some similarity with the issue of risk referred to in this case. He quoted a passage from that decision which read as follows:
"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."
I mention that not because it is identical in any way with what we have here, but there are some statements of principle there. Certainly, it is significant that the amount involved in that case, albeit for offending against the tax legislation, was in excess of $114,000 which, by today's standards, would probably be much, much more than that.
Further on in the decision his Honour referred to some of the comparative matters, starting firstly with Groundwater. He noted that that was the only one in which a sentence involving an actual period of imprisonment had been upheld. He then referred to Rosales and Anderson, two separate decisions, where periods of imprisonment were set aside by District Court Judges. He distinguished Groundwater on the basis that it was noted by the Judge who heard the appeal that there had been continued offending even after notification of overpayment, which made the offending worse.
Rosales was a decision of the Chief Judge where the overpayment was in the region of $25,000. There, the Chief Judge concluded that there were some exceptional circumstances which related to her ongoing care of a two year old child. Counsel for the respondent in this case referred to that decision and pointed out to me that there were no such special circumstances here in terms of the ongoing commitment to other people, or the support of other people.
He referred to comments of the Chief Judge in that case where she said:
"I have no doubt he took all these 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 grave punishment and which would certainly act as a deterrent in my view."
Clearly, there she was talking about, amongst other things, the commitment to the child.
He then referred to Anderson, a decision of Brabazon DCJ and, in the second paragraph on page 35 of the decision in Smith and Benson, he noted that Judge Brabazon in Anderson found that the failure by the sentencing Magistrate to mention a number of matters required to be considered by section 16A of the Crimes Act, coupled with the misapprehension about the state of authorities, meant that the matter should be reviewed by the Court and an appropriate sentence imposed.
The argument here is that the likely effects to her if incarcerated, or the risks if incarcerated, were matters that were relevant under her personal circumstances for the purposes of section 16A of the Crimes Act and should have been referred to.
It is difficult for me to conclude that the Magistrate has, by implication, referred to those risk factors when there was no discussion about that nor any reference to that in her decision. Certainly the sentence that she did impose is one that was well within range for these types of offences.
All of the material placed before me suggests, in effect, that invariably sentences of imprisonment are going to be imposed for matters such as this, for amounts such as this, where there's been prolonged offending over a period of time, unless there are special circumstances which may tip the exercise of the discretion in favour of a non-custodial sentence.
I appreciate that it is very difficult for Magistrates when doing sentences, because of the sheer volume of work that they have, to properly refer to everything, but on my review of this matter it seems to me that this was a clearly relevant consideration to her personal circumstances and it is something that should have been considered in the exercise of the discretion on sentence.
I must say that, on my reading of the Magistrate's decision, she has taken into account every other relevant factor. These are summarised in paragraph 11 of the appellant's submissions - quite fairly summarised there - and I will not repeat them for the purposes of this decision. But it seems to me that this is the type of case where she was in error in failing to expressly address the issue of risk.
That being the case, I can, following his Honour's reasoning in Smith v. Benson as set out at the top of page 38 of the decision, find that she did not give sufficient weight or any weight to what was a very material consideration, namely the personal circumstances relative to that issue of risk, and that therefore the sentence imposed is manifestly excessive.
Having reached that conclusion I can then exercise my own discretion in terms of what penalty should be imposed. I must confess that if I was facing the matter at first instance, I may have approached it slightly differently.
The concern for me is the fact that she does suffer from depression and the fact that it is ongoing, and it seemed to me to be the sort of case where, whilst I would be satisfied that the matters in her favour tip the scales in favour of a non-custodial sentence, particularly because of the relevance of the condition to her offending, coupled with the obvious risks to her if she were incarcerated, I still believe that an order could have been structured which gave her some ongoing support after she was sentenced.
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HIS HONOUR: For the reasons that I have outlined and the findings I have made, the appeal is upheld.
In the circumstances, as I said, I have to exercise my own discretion in relation to sentence. I accept the deterrent aspect is a very significant factor in matters such as this. I have had regard to what is said in Newton, although I still think that deterrence remains the significant factor in matters such as this.
In the particular circumstances of your case where the offending is explained to some extent by the condition that you suffered from at the time and where there are certain risks on imprisonment - and I note that you served one day in prison as it turned out - it seems to me that the balance is tipped towards a non-custodial sentence, and the deterrent aspect of sentencing can be satisfied by the imposition of a substantial head sentence of 12 months which, from what I have read in comparative cases, is the sentence that is often imposed.
So even though I have increased the head sentence, you will be released today.
DEFENDANT: Thank you, your Honour.
HIS HONOUR: So you are sentenced to 12 months' imprisonment, but I order that you be released forthwith upon you giving a recognisance in the sum of $1,000, conditioned that you be of good behaviour for a period of two years; and further conditional that you be subject to the supervision of a Probation officer for a period of two years.
Now, I can only make the order as for probation if you consent, and I understand that Mr Trevino who appeared on your behalf spent some time talking to you, explaining that. Are you prepared to consent to me making an order placing you on probation?
DEFENDANT: Yes, your Honour.
HIS HONOUR: I will tell you why I am doing that. You clearly have a problem and it seems to me that one of the benefits of probation in your case is it helps provide some ongoing supervision for the next two years.
DEFENDANT: And this last year has been - it's been hell, just waiting for this.
HIS HONOUR: All right. Well, there is help there for you into the future and you had better avail yourself of it.
Now, when I make orders such as this, I have to explain to you in language likely to be understood by you, and I can be pretty basic, as for the purposes and the consequences of an order like this. The purpose of the order is for you to serve your term of imprisonment in the community - mainly because of your psychological problems. If it was not for those, I concede that the sentence in your case would have been probably 12 months and you would have served four months. Somewhere around that area.
And it is also to provide you with ongoing supervision when you get out, because of those problems. Because not only were those problems relevant at the time you committed your offence, your depression was ongoing, and probably still is ongoing, at the time you were sentenced.
Now, probation in some ways is a help and in other ways is a hindrance. You will have to report to the Probation office here in Cairns, and I will make that by 4 p.m. tomorrow; you will have to receive and accept visits from them, as directed by them; you will have to advise them as to where you are living and any change of your address; if you move out of the State you have got to get their consent. These are all invariably the terms of conditions that apply to a probation order.
Now, what is important is if you breach that order. If you treat this as a slap on the wrist and go off and celebrate and just ignore probation, you will be in breach of that order. If you breach the probation order, you are in breach of the good behaviour bond, and if you do that you can be brought back to this Court, and there are a number of options open to the Court.
Similarly, if you re-offend, you would be in breach and you could be brought back. In the more serious cases you would be re-sentenced. In other words, sentenced again for what you did, and if that happened you do not have to be Einstein to work out that there would only be one result‑‑‑‑‑
DEFENDANT: I understand.
HIS HONOUR: ‑‑‑‑‑and that result would be straight to gaol.
There are other options. You could be fined for the breach. There are various options. The order could be extended.
You also have the right, if you wanted to, to apply for a variation of an order such as this - although I point out it is one thing to have the right, it is another thing to have the grounds - and that is something you would need to seek legal advice about before you did.
So, in your case, in view of the fact that you have indicated that you are prepared to consent, I confirm that it will be a term of the recognisance that I have ordered that you be subjected to the supervision of a Probation officer for a period of two years, and I will order that you report to the office of Probation and Parole at Cairns by 4 p.m. tomorrow. You will need to tell them what happened, what the sentence was; in fact, I would get your lawyers to help you to give them something to explain it, because it is a Commonwealth legislation and they would need to know that.
Is there anything else I need to do?
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HIS HONOUR: I will vacate the sentence that was imposed by her Honour at first instance and I will impose the sentence that I have just ordered.
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HIS HONOUR: Whilst I vacated part of the sentence, I make it clear that I did not in any way intend to vacate the order insofar as it relates to reparation.
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HIS HONOUR: You must appreciate you have got to keep out of trouble from here.
DEFENDANT: Yep, absolutely.
HIS HONOUR: This was by no means an easy decision and you could easily have ended up with a totally different result.
DEFENDANT: Thank you very much, your Honour.
HIS HONOUR: All right.