R v Waters; Ex parte Director of Public Prosecutions (Cth)

The Commonwealth Director of Public Prosecutions appealed a sentence for fraudulent conduct on the basis it was manifestly inadequate. The respondent had dishonestly submitted 355 false Medicare claims over 13 months and obtained more than $178,500 of taxpayer funds. She was sentenced to a period of imprisonment with immediate release on a recognisance and probation order. The Court of Appeal held the sentence was manifestly inadequate and the sentencing judge had erred by placing excessive weight on a psychologist report in moderating the principle of deterrence. Their Honours found, in line with comparable cases, a sentence involving actual custody was appropriate. However, the Court of Appeal ultimately dismissed the appeal, refusing to exercise its discretion to re-sentence the respondent. The nine-month delay between sentence and the appeal hearing, during which time the respondent had been progressing well in the community, would have been to impose a sentence at too high a cost in terms of justice to the individual.

Bowskill CJ and Morrison JA and Henry J

20 June 2023

Background

The Commonwealth Director of Public Prosecutions (CDPP) appealed the sentence of a medical receptionist, who pleaded guilty to dishonestly obtaining a financial advantage by deception. [4], [6]. The medical receptionist had submitted 355 false Medicare claims over a period of 13 months, causing $178,548.70 of taxpayers’ money to be paid to her. [3], [19]. She was sentenced to two years and nine months’ imprisonment, released immediately on a $1,000 two-year recognisance and two years’ probation. [3].

The CDPP contended that the sentencing judge had erred by: (1) imposing a sentence which was manifestly inadequate, and (2) finding issues of specific and general deterrence could be moderated by a mental health report of the respondent. [6].

Decision of the Court of Appeal

The Court of Appeal held the sentencing judge had erred in moderating specific and general deterrence at sentence, and the sentence was consequently manifestly inadequate. [1], [2], [67]. However, the Court ultimately dismissed the appeal, exercising residual discretion (per section 669A) to refuse to re-sentence the respondent to a period of actual custody [1], [2], [87]–[89].

Error: Specific and general deterrence

The Court of Appeal considered general deterrence to be “an especially important sentencing principle” for offending of this kind. [9]–[11]. Applying this principle, many of the comparable sentences involved periods of actual imprisonment. [11]–[17]. Those comparable cases suggest that a sentence not requiring actual time be served would only be warranted in “exceptional circumstances”. [18].

In accordance with the principles in Verdins (2007) 16 VR 269, a mental impairment is relevant to sentencing. [54]–[55]. It is the effect rather than the “diagnostic label” of the impairment which is relevant. [55]–[58]. However, the sentencing judge placed excessive weight on the psychologist report. [53], [65].

The report identified issues at the time of offending, namely a panic disorder and concerns about further domestic violence. [30], [33]. However, any mitigation that may have been drawn from those factors dissipated in light of the period of offending and the amount of money taken. [30], [60], [63]. Indeed, on her own reporting to the psychologist, the respondent’s motivation shifted from security concerns related to her ex-partner, to a desire to spend money on things she liked. [39]. Additionally, the report itself was of a kind that is heavily qualified or vague about the offender’s culpability and did not provide an “authoritative diagnosis”. [32]–[33], [44], [50].

Despite neither the report, nor the respondent’s representative at sentence, indicating the respondent had a mental impairment which would make actual custody more burdensome than for an ordinary person, [52], the sentencing judge concluded this was the case. [65].

While section 15 of the Penalties and Sentences Act 1992 allows a sentencing judge to have regard to information not strictly proved, the information must nevertheless be capable of logically supporting the inference to be drawn. [66]. In the present case, the “void in information” did not justify the leniency in sentence. [66]. The Court of Appeal explained:

“His Honour’s reasoning that the offending was persisted with in a state of downward spiralling mental illness and was mitigated when looked at through the prism of the respondent’s diagnoses was not open on the evidence or logically open as moderating the claims of general deterrence. It was at odds with the material before the Court…”. [63].

That error resulted in the sentencing judge inappropriately moderating general deterrence. [63].

Similarly, the sentencing judge erred in concluding specific deterrence could be moderated on the basis the respondent had previously sought counselling and expressed a willingness to engage. [64]. “That is too tenuous a basis to infer moderation of the need for specific deterrence for an offender who abused the trust of her employer and offended in such a prolonged and significant way, and thus also constitutes error”. [64].

In the absence of the psychologist report, other factors in favour of mitigation warranted a “somewhat more lenient than ordinary total period of imprisonment” with actual time served to be less than 50 per cent. [31], [68].

Reasons for dismissal: Delay

The Court of Appeal retains a residual discretion to refuse to re-sentence a person to custody who has been granted liberty. [69]. In deciding whether to exercise that discretion, the Court must have regard to the respondent’s current circumstances relevant to the penalty, not only those which arose at the original sentence. [69].

In the present case, the nine-month delay between the sentence and appeal hearing, and the respondent’s progress in the community weighed in favour of refusing to exercise the discretion. [72]–[77]. Notably, the respondent was not to blame for the delay. [76]. The Court acknowledged that it controls the list, but emphasised that “where an appellant [here the CDPP] has good reason to seek an expedited listing, as is invariably the case with appeals against sentence inadequacy, it is the role of that party to advocate for it”. [76]. In the interim, the respondent had engaged well with probation and was attending her GP and psychologist frequently. [78]–[79]. She obtained employment and commenced vocational studies. [81]. The reparation order had also been complied with. [82].

In those circumstances, the Court of Appeal determined not to exercise its discretion to re-sentence the respondent, as to do so would “come at too high a cost in terms of justice to the individual”. [86]–[88].

A Hughes of Counsel