Swoboda v Cobbo[2017] QDC 30

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal pursuant to s 222 of the Justices Act 1886.  Upon a plea of guilty on 28 April 2016 in the Magistrates Court Brisbane, the respondent was convicted of one count of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (Cth).  By applying s 20AB (1AA)(a)(ii) of the Crimes Act, she was sentenced to three years probation, with two special conditions relating to psychological treatment and financial counselling. A conviction was recorded.  She was ordered to make reparation in the amount of $52,999.50. 

Re-hearing

2. [2]
   Pursuant to s 223 of the Justices Act, subject to leave being given to adduce additional evidence, an appeal under s 222 is by way of re-hearing on the evidence given in the proceeding before the magistrate.

3. [3]
   In an appeal by way of re-hearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”^[1]

4. [4]
   In House v The King, the majority judgment referred to the manner in which an appeal against an exercise of discretion should be determined:

“…It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”^[2]

Ground of appeal

5. [5]
   The ground of appeal is that the sentence is manifestly inadequate. To be accurate, the available ground of appeal is that the punishment is inadequate.^[3]

Facts

6. [6]
   The period of offending was between 23 February 2011 and 5 March 2015. The respondent was in receipt of parenting payments from Centrelink. During that period the respondent was obliged to report to Centrelink her personal circumstances each fortnight to trigger the benefit payments. There were 103 relevant fortnights. The respondent deliberately understated her income and thereby received $54,638.45 in benefits to which she was not entitled. She was not entitled to any benefits for 100 relevant fortnights and had only partial entitlement for three fortnights.

7. [7]
   On 30 October 2012 overpayments were detected by way of a data match between Centrelink records of payment to the respondent and the Australian Taxation Office records of the respondent. Centrelink then queried the respondent on 20 November 2012. The respondent provided a false explanation to Centrelink and then continued to offend for a further two years or so.

8. [8]
   At the time of sentence, the respondent had repaid $1,638.95.

Submissions in mitigation

9. [9]
   By way of mitigation, the following submissions were made on behalf of the respondent:^[4]

1. she was deeply remorseful;

2. the offending arose from need not greed;

3. the respondent had sole care of her seven-year-old daughter;

4. the child would be traumatised if the respondent were imprisoned;

5. the respondent also had the care of her ill mother;

6. the respondent had no criminal history;

7. the respondent had seen a counsellor twice to deal with anxiety;

8. the respondent is an Aboriginal woman and has standing within the community;

9. the respondent’s full-time employment of eight years remained secure notwithstanding the offending;

10. probation would be a harsher penalty than imprisonment in an overcrowded prison with no available programs;

11. imprisonment is a sentence of last resort;

12. the respondent knew that she had to repay the monies which she unlawfully received.

Sentencing remarks

10. [10]
    The sentencing remarks are silent as to any reliance upon the submission that the fraud resulted from need rather than greed. In my view, the magistrate would have been entirely correct to ignore that submission. At all relevant times, the respondent was receiving an average salary before tax of $2,007 per fortnight. No material was placed before the magistrate to justify the assertion of need. Indeed, the respondent’s capacity to repay $1,638.95 before sentence, and her capacity to make continuous repayments of $100 per fortnight from the date of sentence, as now set out in the respondent’s affidavit dated 25 October 2016, strongly suggest that this submission was entirely without merit. No one would suggest that the respondent sought a lavish lifestyle, but it is not a matter of need when one sets about unjustifiably to improve a reasonable lifestyle.

11. [11]
    Having referred to a number of the comparable decisions to which her Honour was referred, the magistrate concluded her sentencing remarks as follows:

“… Francis Cridland is the next case which I place some considerable weight to despite again the fraud amount is different - $18,300 – but that’s a case where the court of appeal apparently spoke about the fact that the magistrate had placed too much weight on general deterrence and I am of the view that this particular case of Ms Cobbo should have a consideration given to it that understands her particular circumstances as the mother of a seven year old.

We’ve already gone into those details and together with the view of her mother being – the position that her mother’s back home, but needs constant care and the fact that this defendant is an asset to her community, and so in my view, Ms Cobbo, you’re not an appropriate vehicle – if I put it that way – for a deterrent sentence to be given and I think that’s supported by the comments made in the matter of Cridland.  The other matters – of the other matters then we do come to the matter that you submitted on, Mr Prosecutor, which is the matter of Groundwater where the fraud amount was $30,200, but again there were aggravated circumstances there, but without the full explanation again, he continued to offend after being notified of an overpayment.  He had no restitution or reparation, but there are very little details given about his personal circumstances and I think the personal circumstances of Ms Cobbo outweigh the detail there.

So I – it’s not something that I could heavily rely on.  So that’s my reasoning for the context of today’s sentence for this particular defendant.  So in short, Ms Cobbo, so that you understand the things I take into account, particularly for you, are your early plea of guilty and your mature age, 34 years, but with a solid contribution to your community and your continuing in your employment which is significant in two ways: (a) you continue to be a significant asset to your community and that being a community where positive contribution of the sort you’re able to give is thin, and also if you continue your employment then you will be able to repay the money whereas if you lose your employment it’s unlikely you would be able to obtain any other employment and you would not be able to make the reparation.

I think that’s an important factor in your sentence.  I’ve already made mention of my concerns about the failure of the data matching in circumstances where until this case at least I’ve always understood that it was and its demonstrated that it has been a successful matter with respect to deterrence.  The data matching’s been a proven situation and I can’t understand why this case unusually hasn’t done the same job as all of the other data matching cases did.  Her personal circumstances in the long run show to me that a probation order will provide her with guidance and support in a positive way and be a longer penalty than she would otherwise suffer within the criminal justice system.  It’s a sentence that is appropriate in my view for the reasons that she can do some very positive work if she remains in the community.

She’s not, in my view, at risk of reoffending if she stays in the community.  To the opposite I would not expect that she would offend again and she can properly pay a penalty by repaying the large amount of money, I’ll make the order $52,999.50 and be under the supervision of the Office of Corrections for a significant period of time while she repays it.  It won’t cover the whole time, but it should cover a very significant portion of it and prove her – she’ll be able to prove her worth and be rehabilitated.  And so I am going to accede to the submission of Ms Kilroy.  I’m going to order that you undergo probation.  It’s been explained to you.  The order will run for the full three years.”

Errors argued by the appellant

12. [12]
    The appellant argues that there are identifiable errors made by the magistrate which led to the imposition of the inadequate sentence:

1. The magistrate’s finding that this matter was not an appropriate vehicle for a deterrent sentence.

2. The magistrate’s finding that the respondent’s protracted offending was the result of a failure of the data match system and therefore a feature in mitigation.

3. The magistrate’s failure to have proper regard to the comparable decisions to which the court was referred.

13. [13]
    In my view, the appellant’s criticisms in [12] above are correct.

1. In finding that the respondent was “not an appropriate vehicle … for a deterrent sentence”, the magistrate stated that that view was supported by the comments made in the case of Cridland.  In Cridland, the District Court judge found that the sentencing magistrate had placed too much weight on general deterrence, not that general deterrence was rendered irrelevant because of personal circumstances.  While s 16A of the Crimes Act (Cth) is silent as to general deterrence, it is, of course, a fundamental factor to take into account in arriving at the appropriate sentence in Commonwealth offences, especially in relation to an offence such as this.  In Putland v The Queen^[5], Gleeson CJ said in relation to deterrence under s 16A:

“In particular, it makes no reference to general deterrence, a matter so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete.”

It may be that the learned magistrate also had regard to the decision of the Court of Appeal in R v Newton^[6], where the majority noted that data matching makes it easier to detect offending of this type and, therefore, data matching itself acts as general deterrence.  However, the need to impose a sentence which deters others from similar offending, remains highly relevant.  As Chesterman JA stated in his dissenting judgement:

“[9]  Accepting, however, that there is now a greater likelihood of detection than before, and to that extent the need for deterrence is diminished, it still remains a significant factor in the sentencing discretion. The certainty of being detected in the commission of the offence is not itself a deterrent if the penalty imposed does not outweigh the benefit gained from the offence. The game must not be worth the candle. The penalty must persuade those tempted to defraud the Commonwealth that any benefit will be offset by a greater affliction.”

2. The prosecutor submitted that there was an aggravating feature in that on 20 November 2012, Centrelink had queried the respondent about possible overpayments and she provided an implausible (false) explanation, and then continued to offend for a further two years.^[7]  There was no challenge on behalf of the respondent to the submission.

However, the learned magistrate proceeded on the basis that those circumstances were not in aggravation of the offending.  On the contrary, the magistrate proceeded on the basis that these circumstances meant that “the level of culpability is somewhat less than some other cases one might expect for this type of offence.”^[8]

With respect, her Honour’s approach was erroneous.  The respondent, when queried, gave a deliberately false explanation to Centrelink and then brazenly continued the fraud for a further two years.  The failure of the authorities to intervene earlier can hardly amount to mitigation.  The prosecutor’s submission that these circumstances were in aggravation of the offending was plainly correct.  

3. By proceeding on the erroneous basis that the circumstances in 2. above were not in aggravation of the respondent’s offending, her Honour’s analysis of the comparable decisions was necessarily compromised. 

Moreover, in considering the comparable sentences, and despite acknowledging the lesser amounts comprising the fraud, her Honour seems to have attributed very little weight to the quantum of the fraud in any given case.  In cases of this type, the amount of the fraud is a fundamental circumstance in determining sentence.  The amount of the fraud and the duration of the offending disclose the extent of the criminality.  Personal circumstances are taken into account in the context of the criminality involved. 

Her Honour relied upon the decision in Rozales as a helpful comparable decision.  Whilst the magistrate noted that the amount of the fraud in that case was half that of the respondent’s offending, it should also be noted that the duration of the fraud was half the period of the fraud of the respondent.  In addition, there was not the feature of aggravation referred to in 2. above.  Further, the learned magistrate noted as a similar mitigating feature in Rozales that the offender, if incarcerated, was likely to lose her employment.  That may have been a relevant consideration in the determination of the appeal in Rozales, but there is no specific reference to it in the appeal judgment.  In any event, if that feature were relied upon in the determination of that case, one would expect that it would be well-founded.  That is not the situation here.  There is no such evidence in this case, let alone a submission to that effect. 

Indeed, the submission made in this regard on behalf of the respondent was as follows:

“She’s still employed and has been employed up until yesterday.  I spoke to her employer, whose happy to keep her employed, and I have references here …”.

There was no suggestion advanced before the magistrate that the respondent would or would be likely to lose her employment if incarcerated for a period of time, bearing in mind the modest periods of actual incarceration imposed in similar cases such as Newton^[9], namely, three months and fifteen days and Desborough^[10], namely three months.

Despite the known support of the respondent’s employer and the absence of any suggestion that the respondent was likely to lose her employment if incarcerated, her Honour proceeded on the basis that the respondent was at such risk.

Personal circumstances

14. [14]
    The learned magistrate stated in the sentencing remarks:

“… I am of the view that this particular case of Ms Cobbo should have a consideration given to it that understands her particular circumstances as the mother of a seven-year-old.”

The magistrate seems to be referring to two particular submissions on behalf of the respondent:

1. (a)
   that Child Safety had been involved “and the child was put on a two-year order”, but the child is back with the respondent; and

2. (b)
   the child would be traumatised if her mother were imprisoned.

As to (a), the magistrate seemed to proceed on the basis that the return of the child to the respondent was somewhat recent and therefore any separation of the child and the respondent now would be particularly traumatic.  There is no specific indication in the material when the order was in place, but the submission made on behalf of the respondent implied that it was not a recent order, but that the two-year order was put in place shortly after the child’s birth:

“She (the respondent) has been the victim of violence early on, when her daughter was first born, which she had to escape.  And Child Safety became involved, and the child was put on a two-year order.”

As to (b), it seems inevitable that the child would suffer some hardship, stress and sadness if the respondent were incarcerated.  However, regrettably, the common consequence of criminal offending is that the offender’s family suffers. 

15. [15]
    In relation to such consequence, Thomas J in Tilley^[11] stated:

“Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them.  It is well-recognised that very often a prison sentence will result in equal hardship to persons other than the offender.  In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support.  In the case of a female, it may mean the temporary loss of a mother.  It is common that hardship or stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished.  An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors.  The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave into the temptation.”

16. [16]
    In this case, there was no suggestion that the respondent’s child and mother would not be otherwise properly cared for if the respondent were imprisoned.

17. [17]
    In the absence of a suggestion to the contrary, where an offender is legally represented and where actual incarceration is an obvious possible outcome on sentence, a court can expect that proper care arrangements would be in place in case the offender were incarcerated. Of course, if in doubt, questions may be asked by the court.

Consistently with there having been proper care arrangements in place, it is now evident from the affidavit of the respondent filed 26 October 2016 that the respondent did have, and does have support available to her.  In paragraph 18 of the affidavit, under the heading “Home Life”, the respondent states:

“I am supported by my maternal aunt and uncle, Mavis Cobbo and Fred Cobbo.  I am also supported by Valerie Mehonoshen and Racheal Collins whom have been there for me throughout this process and continue to offer their support and guidance.”

18. [18]
    The learned magistrate concluded that:

“…in this case I’ve got no difficulty in seeing that there would be an overwhelming hardship, given the child has been taken from the mother in the past.  There has been work done to return the child to the mother.”^[12]

In relation to the hardship of the child, the submission on behalf of the respondent put the matter no higher than this:

“She turned seven in June.  So she’s young, she’s at school, and she’s also going to be traumatised with her mother’s imprisonment, if Your Honour decides to penalise her that….”^[13]

The conclusion that the child would suffer “overwhelming hardship” is not based on any evidence, or indeed, submission on behalf of the respondent. 

Prosecution in the Magistrate’s Court

19. [19]
    The learned magistrate regarded the fact that this matter was brought in the Magistrates Court, rather than the District Court, as reflective of the matter being less serious than other cases, and, perhaps, reflective of the prosecutor regarding it as less serious than other cases.^[14]  The learned prosecutor had argued clearly and fully to the contrary.^[15]

20. [20]
    In the course of this argument, the prosecutor had properly referred to the decision in R v El Masri.^[16]  Quite apart from the decision in R v El Masri, there is substantial authority throughout Australia to the effect that where the maximum available penalty is lower because the matter is prosecuted within the limited jurisdiction of the Magistrates Court rather than the District Court, the correct approach is to impose a penalty reflective of the seriousness of the offence, taking into account the maximum penalty for the offence, namely, in this case, 10 years imprisonment.  The Magistrates Court must not exceed the jurisdictional maximum, but otherwise, the court is unconfined.  The jurisdictional maximum is not reserved for a “worse case”.^[17]

The only inference that one would be entitled to draw from the prosecution being brought in the Magistrates Court rather than the District Court, is that, consistently with the comparable decisions relied upon by the Crown, the prosecution accepted that a sentence of two years imprisonment would be adequate in this case.

Decision

21. [21]
    As set out in the reasons above, errors were made in the exercise of the sentencing discretion. Further, with respect, I am of the view that, by any measure, the sentence imposed was inadequate. Despite the personal circumstances of the respondent, which in my view were in no way extraordinary, a sentence of imprisonment was the only appropriate sentence, having regard to all other sentencing options. Moreover, the seriousness of this offending warranted that the order for imprisonment include a period of actual incarceration. The decisions in Newton and Desborough are plainly of assistance in this regard.

22. [22]
    As argued on behalf of the respondent, that is not the end of the matter. In a case such as this, a residual discretion exists as to whether the appeal will be allowed and, if so, whether the sentence warranted at first instance will be imposed upon re-sentencing.^[18]  The affidavit of the respondent filed 26 October 2016 is relevant to this consideration.  The contents of this affidavit and the documents exhibited thereto are not challenged.

23. [23]
    The respondent was sentenced on 28 April 2016. The Notice of Appeal was filed on 9 May 2016 and the appeal was heard on 28 October 2016.

24. [24]
    Between sentence and the appeal hearing, the respondent has been under the probation order and obviously responsive to it. Moreover, she has been paying $100 per fortnight towards the ordered repayment. The respondent continues in her employment and an additional supporting reference from her manager dated 24 October 2016 is exhibited to the respondent’s affidavit.

25. [25]
    The reference from the respondent’s aunt, Leticia Mavis Cobbo, dated 12 October 2016, is generally pragmatic and helpful. It describes the respondent’s rehabilitation being underway. In particular, Mrs Cobbo states that, for the first time, the respondent has secured her own home for herself and her child. (No mention is made by the respondent or Mrs Cobbo, or indeed anyone, in relation to the current circumstances of the respondent’s mother). Mrs Cobbo states that with assistance through the probation officer, the respondent is now more financially stable and more aware of her responsibilities and aware that she is accountable for her actions. Mrs Cobbo notes that the respondent and her daughter are “much more stable and happier and have adapted a great routine in their family life.” It is Mrs Cobbo’s view that the respondent has made remarkable progress.

26. [26]
    In Karazisis, the court relevantly stated:

“[107]  Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand.  When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed.  A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.

[108] Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent.  If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the court will be reluctant to disturb that situation.

…

[112]  Rehabilitation has always been regarded by this court as an important factor in determining whether to interfere with a sentence that was designed to enhance its prospects.  This applies as well to custodial sentences which are ordered to be served in less punitive ways than actual imprisonment… That is plainly a matter to be accorded considerable weight in determining whether the court should, in the exercise of its residual discretion, dismiss such an appeal.  Rehabilitation will also play its part in the sentencing discretion in the event that the court resolves to intervene and impose a different sentence.” 

27. [27]
    The sentence imposed by the magistrate was inadequate, and, in my view, it should not stand. However, taking into account all relevant matters including the delay between sentence and appeal and the partial rehabilitation and stability in the respondent’s life which have been achieved during that interval, it is also my view that a period of actual incarceration should not now form part of the sentence.

28. [28]
    I have taken into account that the respondent has been under a Probation Order since 28 April 2016. The orders on re-sentence will reflect the serious nature of the offending and give effect to the need to deter similar offending.

29. [29]
    As to the serious nature of the offending, I wish to say this. The magistrate stated in the sentencing remarks:

“You continue to be a significant asset to your community and that being a community where positive contribution of the sort you are able to give, is thin…”

That observation seems to reflect a lack of proper appreciation of the nature of the respondent’s offending.  Necessarily, the welfare fund is far from limitless.  It is there for those persons genuinely in need.  No doubt those vulnerable persons would benefit from somewhat higher welfare payments, but, because of the number of vulnerable people in the community, the amount which each receives is limited.  The respondent’s offending strikes at the very heart of the welfare system.  The respondent’s dishonesty, together with those who similarly defraud the system, contribute to the restriction on amounts that can be paid to those truly in need.  The assertion that the respondent is a significant asset to her community, absent any qualification, entirely ignores that for four years or so she deliberately defrauded her community.  The respondent, together with like-minded offenders, expose the most vulnerable in her community to the risk that welfare payments would not be increased, and indeed, expose these persons to the risk that welfare payments may need to be reduced, as has recently occurred in relation to certain areas of welfare. 

30. [30]
    The observations of the President of the Court of Appeal in R v Hurst ex parte Cth DPP^[19] are also relevant in underscoring the seriousness of this offending: 

“They (offences of this type) 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.” 

Orders

31. [31]
    The orders are as follows:

1. The appeal is allowed.

2. The order of the magistrate that the respondent be subject to probation for a period of 3 years is set aside.

3. Instead, the respondent is convicted and sentenced to 2 years imprisonment, but by order I direct that the respondent be released forthwith upon the respondent giving security by recognisance in the sum of $2,000 conditioned that:

1. (a)
   the respondent be of good behaviour for a period of 2 years; and

2. (b)
   the respondent will during a period of two years be subject to the supervision of a probation officer.

4. This sentence runs from today.

5. The order for reparation made by the magistrate is confirmed.