Hope v Neilsen[2017] QDC 265

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant pleaded guilty to one charge of obtaining a financial advantage for herself contrary to s 135(1) of the Criminal Code (Cth) in the Brisbane Magistrates Court on 17 March 2017. She was sentenced to six months imprisonment to be released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (“CA”) after serving one month imprisonment, upon entering into a recognisance in the sum of $2,500 on the condition that she be of good behaviour for a period of two years. Reparation of $16,070.81 was ordered pursuant to s 21B of the CA.

2. [2]
   She now appeals against the sentence of imprisonment pursuant to s 222 Justices Act (Qld) 1886 (“JA”) on the ground that it is excessive (s 222(2)(c) JA).

Circumstances of offending

3. [3]
   Between 26 March 2012 and 19 June 2013, the appellant under declared her income from employment to Centrelink. As a result of her offending, she obtained a total of $16,070.81 in social security benefits that she was not entitled to.

4. [4]
   During the charge period, the appellant earned a total of $63,129.83 in income from employment yet declared only $17,773.18 to Centrelink. She obtained $18,441.07 in benefits during this period, however was only entitled to receive $2,370.00 of those benefits.

5. [5]
   The appellant was sentenced on the basis that she was a 36 year old female with a relevant criminal history post-dating the offending conduct.

Criminal history

6. [6]
   At the time of offending the appellant had no criminal history.

7. [7]
   She does however have two subsequent convictions for stealing by clerks or servants, for which she was sentenced in the Gympie Magistrates Court on 30 April 2015 to two months imprisonment wholly suspended for two years for one offence and 15 months imprisonment with parole release after five months for the other offence. Both terms of imprisonment were ordered to be served concurrently. She was also ordered to pay restitution of $8,103.90.

Maximum penalty

8. [8]
   The maximum penalty for the offence is 12 months imprisonment and/or a fine of $6,600.

The law

9. [9]
   Section 222(1) of the JA provides the defendant’s right of appeal to the District Court. Section 223 of the JA provides that such an appeal, relevantly to this matter, is by way of re-hearing on the original evidence on the record. Section 225 of the JA empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.

10. [10]
    This is an appeal against the exercise of the magistrate’s discretion and therefore an error in the House v The King sense needs to be demonstrated.^[1]

11. [11]
    It is well established that to succeed on such an appeal the appellant must establish some legal, factual or discretionary error.^[2]

Submissions

12. [12]
    The appellant’s principal submission is that the learned magistrate failed to have regard to the provisions of s 17A(1) of the CA which states:

“A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case”.

13. [13]
    The appellant submits that due to this failure the magistrate imposed a sentence that was excessive in the circumstances when compared to sentences imposed in other similar matters.

14. [14]
    Other submissions were also made by the appellant, but for reasons which will become apparent I do not need to address them in this decision.

Consideration

15. [15]
    The focus of this appeal is the order requiring the appellant to serve one month imprisonment.^[3]

16. [16]
    The decision to impose one month actual imprisonment was reached by the learned magistrate after discussing with the appellant’s legal representative the difficulties associated with the appellant being sentenced to an intensive corrections order due to the unavailability of resources in the regional area where she resided.^[4]

17. [17]
    In fact, at page 4 of the decision, the learned magistrate said:

“I have had a look at the comparatives. I do not consider that an intensive corrections order is appropriate, given where you are living, unfortunately. And I consider that a term of imprisonment in the circumstances is well within range for the reasons I have given.”^[5]

18. [18]
    That comment unambiguously suggests that if the appellant had been living in a more urban environment at the time of sentence then a sentence that did not involve actual imprisonment would have been appropriate.

19. [19]
    It follows of course that before imposing a sentence that did involve actual imprisonment, reasons as to the appropriateness of such a course would have to be clearly articulated. In this matter however, no such reasons were given. That omission failed to comply with the provisions of s 17A(1) of the CA, in that there is no indication on the material that the learned magistrate considered the potential appropriateness of a sentence of imprisonment that did not involve immediate imprisonment.

Appellant’s antecedents

20. [20]
    The appellant was 31 to 32 years of age at the time of the offending conduct and is now 36 years old. She had a difficult upbringing. She is the mother of two children, one of whom stays with her part-time. At the time of sentence in the court below, she had been working as a part-time cook and had the potential to be offered an apprenticeship as a chef.^[6]

21. [21]
    She entered a timely plea of guilty. She had made no repayments towards restitution but I note that she was making fortnightly repayments to Centrelink in relation to an earlier administrative debt that she was required to extinguish before she could commence repayments in relation to the offence amount.^[7]I note also that a reference under the hand of Nadine Kelly was tendered (exhibit 2) which stated that if the appellant was jailed she would lose her employment and the potential opportunity of an apprenticeship.^[8]

Respondent’s submissions

22. [22]
    The respondent has submitted that when compared to other similar matters the magistrate did not err by imposing a sentence that requires the appellant to serve one month of immediate actual imprisonment. I note though that the respondent did not attempt to argue that the magistrate complied with s 17A(1) of the CA.

Considerations on sentence

23. [23]
    It is well acknowledged that offences of this nature are easy to commit and difficult to detect, partly because Australia’s social security system relies upon the honesty of the recipient of the benefit. Therefore general and personal deterrence are significant considerations on sentence. So too is the fact that, in this matter, the appellant understated her income on many separate occasions over the 15 month period of time. Additionally, the fact that she has committed subsequent offences of dishonesty is a relevant consideration to the degree of leniency that might be afforded to her on sentence for this matter.^[9]

24. [24]
    As I have said, general deterrence is an important consideration on sentence in cases of welfare fraud and in R v Holdsworth,^[10]Pincus JA and Thomas J stated (at p 3):

“It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught.”

25. [25]
    In R v Hurst; ex parte Commonwealth Director of Public Prosecutions,^[11]McMurdo P with whom MacKenzie and Chesterman JJ agreed:

“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.”

26. [26]
    In R v Newton,^[12]the court reviewed a number of its prior decisions, and with respect to general principles, Chesterman JA stated:

“One can always sympathise with those convicted of this kind of offence. They are invariably lowly paid and poorly skilled members of society for whom life is a struggle and who succumb to temptation to lighten the financial burdens they daily face. Nevertheless as McMurdo P pointed out in Hurst, referred to by Atkinson J, offences against the welfare system leads to public loss of confidence in the integrity and worth of the social security system and creates a risk of demonising the genuine and needy who require assistance. Those who intentionally abuse the system to gain substantial benefits by their dishonesty must expect to be sent to prison as a deterrent to them and others who might feel similarly tempted.”

27. [27]
    It should be noted however that the need for deterrence should be appropriately balanced against circumstances pertaining to the offender.^[13]

Comparable cases

28. [28]
    During the sentencing proceedings in the court below, and in this court, the prosecution relied on the following three cases:

1. (a)
   Bronson v Commonwealth Director of Public Prosecutions:^[14]

This matter involved a fraud of $10,637.03 over a period of 43 fortnights. Bronson was charged with one offence which carried a maximum penalty of 12 months imprisonment. She was 56 years old, single with no dependents and had no prior convictions. There was evidence that she was otherwise of good character and had increased responsibilities for the care of her grandchildren. She had repaid less than $1,000 of the overpayment amount by the time of sentence. At first instance she was convicted and sentenced to 100 hours of community service. Dearden DCJ held on appeal that the offending was not trivial and was not committed under any extenuating circumstances. His Honour dismissed the appeal.

2. (b)
   Lammon v Emery:^[15]

This matter involved a fraud of $21,994.26 over a period of 44.5 fortnights. Lammon was charged with one offence carrying a maximum penalty of 12 months imprisonment. He was 35 years old, single with no dependents and had a previous yet dated criminal history for dishonesty offences which the magistrate did not place weight upon. There was also evidence that Lammon had a heart condition which required medication and monitoring. He had repaid approximately $2,000 of the overpayment amount at the time of sentence. At first instance, Lammon was sentenced to six months imprisonment, with release on recognisance after one month. On appeal, Robin QC DCJ found that the sentence imposed came within the proper sentencing range. His Honour found however that the sentencing magistrate had erred due to a factual error and that not enough weight had been placed on the appellant’s medical condition. His Honour allowed the appeal and substituted the sentence at first instance (taking into account the eight days spent in custody prior to the grant of appeal bail) with a 12 month intensive corrections order.

3. (c)
   Anderson v Commonwealth Director of Public Prosecutions:^[16]

This matter involved a fraud of $19,180.43 over a period of three years and nine months. Anderson was charged with two offences (due to a change in legislation) each carrying a maximum penalty of 12 months imprisonment. She was 29 years old, had no prior convictions and cared for two young children. There was evidence that Anderson had personal difficulties including issues of domestic violence. Anderson had repaid less than $1,000 of the overpayment amount at sentence. At first instance, she was sentenced to eight months imprisonment, with release on recognisance after six weeks. On appeal, Brabazon QC DCJ held that the sentence imposed was not manifestly excessive. Instead, his Honour found that the sentencing magistrate had erred in failing to take sufficient account of Anderson’s mitigating personal circumstances, namely her prospects of rehabilitation, her employment and her depression. His Honour allowed the appeal and substituted the sentence at first instance (taking into account the five days spent in custody prior to the grant of appeal bail) with an eight month intensive corrections order.

29. [29]
    The respondent has also referred this court to two additional matters:

1. (a)
   Smith v Belgrove:^[17]

This matter involved a fraud of $21,036.31 over a continuous period of 61 fortnights. Smith was charged with two offences (due to a change in legislation) each carrying a maximum penalty of 12 months imprisonment. She was 33 years old, had no prior convictions and received $43,687.58 in income from employment across the charge period. At first instance, Smith was sentenced to 12 months imprisonment on each charge, with release on recognisance after five months. On appeal, Forde DCJ found that the sentencing magistrate had erred in failing to take into account that Smith had used the money to fund her partner’s drug habit – it was therefore an error to say, as the sentencing magistrate had, that greed was the only reason for the dishonesty. His Honour allowed the appeal and released Smith forthwith (taking into account the 51 days spent in custody prior to the grant of appeal bail), and further, ordered that Smith perform 100 hours community service.

2. (b)
   Arthur v Collins:^[18]

In this matter the offender was charged with two offences each carrying a maximum penalty of 12 months imprisonment. She defrauded $10,015.08 over a period of three and a half years, with two separate periods of offending, and continued to offend despite being advised of overpayments by Centrelink. She was a single parent of a six year old child, had no relevant criminal history and had made reparation of half of the defrauded amount by the time of sentence. At first instance, Collins was sentenced with respect to charge one to a two year recognisance pursuant to s 20(1)(a) of the CA, and with respect to charge 2, to six months imprisonment to be released after serving two months on recognisance pursuant to s 20(1)(b) of the CA. On appeal to the District Court, that two month period was substituted by 33 days, being time served prior to the grant of appeal bail. Durward SC DCJ found on appeal that while the sentence imposed at first instance was not manifestly excessive, to send Collins back to serve the balance of that sentence would be too harsh.

30. [30]
    The appellant made reference to the following two cases:

1. (a)
   Hyde v Mason:^[19]

This matter involved an overpayment of $12,449.91 over 52 fortnights. Hyde was convicted after a trial and sentenced to 200 hours community service. He was 52 years of age, and was self-employed in a family run business. His sentence was not disturbed on appeal.

2. (b)
   Rosales v Carstens:^[20]

This matter involved an overpayment of $24,940.38 over approximately two and half years where a sentence of 12 months imprisonment to be released after 10 weeks was imposed at first instance. She was 32 years old and earned around $80,000 income over the charge period. After a successful appeal her sentence was varied to one of a 12 month intensive corrections order.

Conclusion

31. [31]
    These cases demonstrate that for a person with no criminal history at the time of offending (notwithstanding her subsequent offences), an appropriate sentence for an offence involving the amount involved in this matter can include one which does not involve actual imprisonment. Given the provisions of s 17A(1) of the CA, the sentence imposed by the learned magistrate was therefore excessive. It follows that the discretion of this court to sentence afresh is enlivened.

Sentence

32. [32]
    Taking all relevant matters into account, the sentence imposed below is varied to the extent that the order requiring the appellant to serve one month imprisonment before release is set aside and substituted with an order that she be released immediately.

33. [33]
    Orders

1. Appeal allowed.

2. The order made in the Magistrates Court at Brisbane on 17 March 2017 requiring the appellant to serve one month imprisonment before release is set aside and substituted with an order that she be released immediately.

3. In all other respects the order made in the Magistrates Court at Brisbane on 17 March 2017 is unchanged.