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Rhodes v Director of Public Prosecutions (Cth) QDC 165
DISTRICT COURT OF QUEENSLAND
Rhodes v Commonwealth Director of Public Prosecutions  QDC 165
SHARNEE ANN RHODES
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Magistrates Court at Hervey Bay
12 May 2017 (ex tempore)
12 May 2017
CRIMINAL LAW- JUDGMENT AND PUNISHMENT- Social Security Fraud- whether Magistrate erred in failing to impose penalty on each count- whether Magistrate erred in failing to advise the defence that release would occur at the half way point- whether the sentence is manifestly excessive
Criminal Code 1995 (Cth) s 135.2
Crimes Act 1914 (Cth) ss 4K, 16A, 16F, 17A, 19, 20
Justices Act 1886 (Q) ss 222, 223
R v Crofts  1 Qd R 386
R v Desborough  QCA 297
R v Dolan  QCA 41
R v Edwards; ex parte Commonwealth DPP  QCA 93
R v HAP  QCA 137
R v Holdsworth  QCA 242
R v Hurst; ex parte Commonwealth DPP  QCA 25
R v Kitson  QCA 86
R v Newton  QCA 101
R v Pratt  QCA 402
R v Ruha, Ruha and Harris exparte Commonwealth DPP  2 Qd R 456
R v Ungvari  QCA 134
R v Wright (1994) 74 A Crim R 152
Teelow v Commissioner of Police  2 Qd R 489
Ms M Power for the appellant
Ms D Younger for the respondent
Legal Aid Office (Queensland) for the appellant
Commonwealth Director of Public Prosecutions for the respondent
- In this matter the appellant was sentenced to 12 months imprisonment with a recognisance release order after six months. She has served 101 days in pre-sentence custody. The matter is reasonably urgent. It is, therefore, desirable I give an ex tempore decision in this matter, and my reasons should be read in that light.
- The appellant appeals against penalties imposed on her in the Magistrates Court at Hervey Bay on 31 January 2017. She pleaded guilty to four counts of obtaining a financial advantage for herself from the Commonwealth to which she was not entitled knowing or believing she was not eligible to receive that financial advantage, contrary to section 135.2(1) of the Criminal Code 1995 Commonwealth. An order for reparation in the sum of $38,792.73 was also made. That is not challenged.
- The notice of appeal alleges the penalty imposed was manifestly excessive. The appeal is pursuant to section 222 of the Justices Act 1886. Section 222(2)(c) of the Justices Act that defines that where a defendant pleads guilty, then the person may only appeal on the sole ground that the fine, penalty or forfeiture or punishment is excessive or inadequate. Section 223 subsection (1) of the Justices Act provides that the appeal is to be heard by way of rehearing on the evidence given in the proceedings before the justices.
- In Teelow v The Commissioner of Police  2 Qd R 489 at paragraph 4 Muir JA held that it is a normal attribute of an appeal by way of rehearing that the powers of the appellant Court are exercisable only where the appellant can demonstrate that the order is the result of some legal, factual or discretionary error.
- I now turn to a review of the proceedings. The Prosecutor informed the Magistrate that the maximum penalty for each charge was 12 months imprisonment. The appellant was born on the 1st of March 1972 and was 44 years of age.
- Exhibit 1 was the appellant’s criminal history. The history disclosed a significant history including four offences of dishonesty, which had occurred or were dealt with at least on the 1st of September 2003 and the 19th of January 2004. There was also a larceny conviction and take and use cattle conviction on 23 March 2004. There were other convictions for traffic offences and assault. It is noteworthy the last conviction for dishonesty offences was some 13 years prior to the present offences.
- The Prosecutor informed the Court that between 30 August 2010 and 8 September 2014 whilst in receipt of Austudy and Newstart allowances, the appellant intentionally misrepresented her true circumstances to the department and failed to correctly declare the amount of her income from her employment to the department. The appellant provided information about her income to Centrelink during that period, but made false declarations or statements as to this. The offending conduct occurred over about four years.
- She had been intermittently in receipt of Social Security benefits, namely parenting payments, since 1993, but during the periods of the offending, she was in receipt of Austudy and New Start allowance. In her New Start allowance claim form she falsely declared she was not employed. Whilst in receipt of both payments, she substantially under-declared her income and as a result received a greater rate of benefits than she was entitled to.
- She received income from three employers during the period of offending. She was employed by three different employers and earned a total of $98,685 gross during the period, an average of about $1100 per fortnight in gross income. That income was deposited into the same account into which the Centrelink payments were made. She reported her income as required on a fortnightly basis on 90 occasions including by internet, telephone and mobile application. During the period of the offending she made 21 active false nil declarations and 69 false under-declarations.
- As a result of these declarations, she obtained Social Security payments which she knew or believed she was not either entitled or partially entitled to. Of the $98,685 in gross income she earned, she declared $11,801.45 and received a total of $51,033.25 in Social Security benefits of which she was eligible to receive $10,911.35. The overpayment was $40,121.90.
- The offending was detected by data match with the Australian Taxation Office on 26 September 2013. She was sent a letter by Centrelink on 26 December 2013 advising of this data match. On 24 July 2014 she was contacted and during that discussion said she did not know how to correctly calculate her earnings until it was recently explained to her and she suffered anxiety and depression and was troubled with these conditions over recent years. No formal interview took place. Of the total overpayment of $40,121.90, by the time of sentence she had repaid $1,339.17.
- The respondent’s counsel submitted to the Court that Courts in recent years had expressed the view that Social Security fraud is viewed seriously because it is easy to commit, difficult to detect and involves a system which relies on the honesty of others. Deterrent sentences were called for.
- Relevant facts as to each count were placed before the Court. The offending was aggravated by the offending continuing after the data match and after the debt discussion in July 2014. The respondent conceded pleas of guilty had been entered and then referred to a number of comparable decisions.
- The Defence lawyer provided very brief submissions to the Court. He submitted to the Court the appellant had been in a de facto relationship for 12 years. Her partner was in Court. She had three adult children and nine grandchildren, two of which she looked after regularly. She had been working as a patient services assistant at St Stephen’s Hospital for the last two and a-half years. She had previously worked as a nurse. She had also worked in aged care and disability support with disability support qualifications. She completed volunteer work and was actively involved in the community. The pleas of guilty were stressed.
- The matter had been delayed because of Legal Aid’s decision to originally refuse funding. She was remorseful. She was prepared to fully repay the amount owed and had commenced making those repayments. The Defence lawyer tendered two character references, which I have marked here as exhibit 5, which speak well of her. The Defence lawyer did not argue against imprisonment being imposed. It was submitted the criminal history in terms of similar offending was quite dated, and the Court would consider a suspended sentence or immediate release on parole. I note both of those sentencing options are not available under the Commonwealth sentencing law.
- The Magistrate took account the submissions made by Defence counsel and the references tendered. He also took into account the pleas of guilty. He referred to the previous history. He took into account the importance of deterrence in such a case and the amounts involved and the repayment. He had regard to section 16A and 17A of the Crimes Act and the comparable decisions.
- He determined the only appropriate penalty was one of imprisonment and as a result imposed the penalties relevant to this case, namely, 12 months imprisonment with recognisance release after six months with a good behaviour period of four years, the security being $3,000 together with the reparation order.
- The appellant in her written submissions submits the penalty here is manifestly excessive. It points out the dated history to which I have already referred. It relies on a number of comparable decisions, submitting ultimately that whilst each case turns on its own facts, the circumstances of the present offending are not such as to warrant the imposition of both the maximum sentence and a release date after serving six months. It submits the release order should be after three months.
- In oral submissions today MsPower further submits that the Magistrate erred in failing to impose a penalty on three of the counts, and further submits that there was an error because sufficient weight had not been given to the plea of guilty, that is, there was no explanation as to why the bottom of the sentence was more than one-third.
- The respondent, on the other hand, in written submissions submits the sentence was not manifestly excessive and the Magistrate imposed a sentence within the appropriate scope of judicial discretion. It is submitted no error is revealed in the sentencing remarks. The Prosecution relies on the need for a deterrent sentence, the amount involved and the appellant’s criminal history.
- It is submitted it was open to the Court to impose a global penalty up to a maximum of four years, but that the Magistrate did not exceed the maximum of 12 months imprisonment. It is submitted the appellant’s plea of guilty and personal circumstances were taken into account. It is submitted the comparable cases do not indicate the sentence is manifestly excessive.
- In oral submissions today Crown counsel submits that no error occurred here because there was still a global penalty imposed which was not outside the maximum. As to the issue of the one-third mark, it is submitted that by reference to R v Ruha, Ruha and Harris ex parte Commonwealth DPP  2 Qd R 456 that it is within the discretion of a sentencing Judge or Magistrate to impose a recognisance release order at any time from the beginning to the end of the imprisonment. It is also admitted there is no definitive requirement that there be a “bottom end” of one-third on a sentence.
- Turning to the first point, and that is whether an error occurred, in the Magistrate’s reasons for judgment he said:
“I intend to impose a head sentence on the first charge and the other three periods of imprisonment will be served concurrently. In relation to the first charge, you are convicted. Those convictions are recorded. You are sentenced to 12 months’ imprisonment and I am going to order that you be released after serving six months of that imprisonment upon you giving security by recognisance in the sum of $3000 conditioned that you be of good behaviour for a period of four years from this date.”
- Also tendered today was the bench charge sheet with the notations relevant to sentence. No counts were referred to in this document. It simply referred to the 12 months imprisonment with the release I’ve already mentioned
- Turning to the bench charge sheet, there’s reference to a plea of guilty to counts 1 to 4, but in the imprisonment section there’s no reference to the particular charges.
- It is true under section 4K that a global sentence can be imposed, but that was not, on my reading of it, the Magistrate’s intention. His intention was to impose penalties on each count.
- In R v Pratt  QCA 402 it was held that where a penalty has not been imposed on a particular count, that is an error which leads to a Court of Appeal allowing an appeal and re-exercising the sentencing discretion. There was reference by the parties to R v Crofts  1 Qd R 386, Dolan  QCA 41 and HAP  QCA 137.
- I consider that in light of the stated intention to impose a penalty on each count, which is within discretion under section 19 subsection (3) of the Crimes Act, the Magistrate erred in imposing these penalties and as such there should be a resentencing in this case.
- The next point is that the Magistrate erred in failing to advise that he did not intend to impose a release date at the one-third mark. It is true that a Judge or Magistrate may impose a non-parole period in excess of one-third, but equally it is true in Queensland that the starting point is that on a plea of guilty one might reasonably expect a release after one-third (see R v Ungvari  QCA 134 at ). Also, if that expectation is not to be acted upon, natural justice may require that the parties be given the opportunity of making submissions about that. I refer in that regard to R v Kitson  QCA 86. However the requirement to give notice depends on the circumstances.
- Now, in this case Defence counsel asked for immediate release. The Magistrate did not advise that he would impose a non-parole period or a recognisance release at the halfway point. In the circumstances of this I consider that to be an error. The Magistrate ought to have advised Defence counsel as to his proposed sentence and sought further submissions. In any event, it seems to me, bearing in mind the maximum penalty, that it cannot be said any discount was given to the appellant for the pleas of guilty because the release date was specified at the halfway point rather than earlier. So, in my view, an error occurred here as well.
- Having determined there were errors in the sentencing process here, I now turn to the appropriate penalty to be imposed in this case because, indeed, if I form the view that the penalty imposed by the Magistrate was correct, there would be no need for interference.
- In terms of comparable decisions, I am obviously bound by statements of principle made in Court of Appeal decisions. A number of single-Judge decisions have been referred to me, but, of course, each case depends on its own facts, and it’s for the sentencing Judge to make a decision on the given facts of a case.
- The first thing I should note, of course, is the statement of principle concerning Social Security offences. As was noted in Hurst exparte Commonwealth DPP  QCA 25:
“The honesty of those claiming under the welfare system is essential to its 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 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. R v Wright  74 A Crim R 152 and R v Holdsworth CA No 94 of 1993, 22 June 1993.”
- In R v Desborough  QCA 297 the appellant was sentenced in the Gladstone District Court to two years imprisonment with release after six months. She was ordered to repay $41,096.22 to the Commonwealth. The appeal was allowed and she was ordered to be released after three months. The appellant was 45 years of age and had a minor criminal history. The total overpayments totalled $49,334.55. Ultimately it was held by reference to the case of Newton that the trial Judge erred and the Court should resentence the appellant.
- In Newton  QCA 101 the appellant had been sentenced to two years imprisonment with release after five months. The total overpayment was about $50,000. The Court concluded the sentence was excessive and ordered her to be released immediately after which she had served more than three months. She had significant personal circumstances and had looked after a daughter who had since died but who had suffered cystic fibrosis. It was noted the offending was serious. The principle in Hurst was referred to. She had two surviving daughters. She had no previous convictions. The moneys were not used to fund a lavish lifestyle. It was noted there was a wide discretion as to the appropriate period of imprisonment. Having said that, the overpayment was more than the instant case.
- I have already referred to Hurst. He had been released forthwith by the sentencing Judge. The appeal was allowed and the sentence increased to release him after six months. The amount involved was some $79,000. He was 60 years of age and had a minor and old criminal history and had not offended for 25 years, although it was a dishonesty offence. He had a traumatic life including having been born in a concentration camp in Auschwitz 1944. It was also an Attorney’s appeal, which should be borne in mind.
- In R v Edwards ex parte Commonwealth DPP  QCA 93 the offender committed offences over two lengthy periods, the total amount being more than $81,000. Importantly, that case involved the use of a false identity, which is not the case here. She had a significant criminal history and was on probation for offences of fraud at the time of the offences. She was originally sentenced to two and a-half years imprisonment to be released immediately. On appeal it was ordered she be released after having served six months, the same as the instant case. Even bearing in mind that was an Attorney’s appeal, it’s hard to see it justifiable that a similar sentence would be imposed on the present appellant.
- I have also, of course, had regard to exhibit 7, the respondent’s summary of comparable decisions.
- Having considered all matters, it seems to me, bearing in mind the nature of the case, the pleas of guilty, the favourable antecedents, although bearing in mind, of course, the criminal history, albeit dated and the provisions of section 16A of the Crimes Act, a penalty of 12 months to serve between three to four months would have been appropriate in this case.
- In my view, there was no other penalty aside from actual imprisonment appropriate in light of the amounts involved, the previous convictions and the nature of the offending, but it seems to me, in light of the pleas of guilty, the saving of the cost of a trial and the remorse shown by the pleas, there was no reason to depart from imposing release at about the one-third mark. As it turns out, the appellant has served close to that now and it seems appropriate to me to make orders which would see her released from prison today.
- My orders are therefore as follows:
- The appeal is allowed.
- The sentences imposed in the Hervey Bay Magistrates Court on 31 January 2017 are set aside and in lieu thereof the following sentences are imposed.
- Convictions are recorded on each count. On each of counts 1, 2, 3 and 4 the appellant is imprisoned for a period of 12 months. The sentences are to be served concurrently with each other.
- The sentences are to commence on 31 January 2017.
- I declare that the appellant has served 101 days pre-sentence custody. I state the dates are between 31 January 2017 and 12 May 2017.
- In respect of counts 1 to 4, pursuant to section 20 subsection (1) subsection (b) of the Crimes Act 1914, by order I direct the appellant be released after serving 101 days upon giving security by recognisance in the sum of $1000 conditioned that she be of good behaviour for a period of 3 years.
- The reparation order is confirmed.
- Defence Counsel undertakes to advise the appellant of the effect of the sentence under section 16F of the Crimes Act.
- No order as to costs.
- Published Case Name:
Rhodes v Commonwealth Director of Public Prosecutions
- Shortened Case Name:
Rhodes v Director of Public Prosecutions (Cth)
 QDC 165
12 May 2017