SUPREME COURT OF QUEENSLAND CITATION: R v Newton [2010] QCA 101 PARTIES: R v NEWTON, Robyn Kaye (applicant) FILE NO/S: CA No 20 of 2010 DC No 74 of 2010 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application DELIVERED ON: 4 May 2010 DELIVERED AT: District Court at Brisbane Brisbane HEARING DATE: 13 April 2010 JUDGES: ORDERS: Holmes and Chesterman JJA and Atkinson J Separate reasons for judgment of each member of the Court, Holmes JA and Atkinson J concurring as to the orders made, Chesterman JA dissenting 1. The application for leave to appeal against sentence is granted. 2. Appeal allowed, only to the extent of ordering that the applicant be released immediately and otherwise leaving the sentence imposed in place. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE where applicant fraudulently claimed social security payments amounting to $50,379.62 where applicant did not declare income where applicant had no prior criminal history and whose daughter died during the time offences were committed where applicant pleaded guilty to two counts of obtaining a financial advantage by deception and was sentenced to two years imprisonment to be released after five months on a recognizance for two years in the amount of $2,000 whether sentence imposed was manifestly excessive Crimes Act 1914 (Cth), s 16A(2) Criminal Code Act 1995 (Cth), s 134.2(1)
2 COUNSEL: SOLICITORS: R v Edwards; ex parte Cth DPP [2001] QCA 93, considered R v Hurst; ex parte Cth DPP [2005] QCA 25, cited R v Oag [1993] QCA 225, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, cited R v Smith [1999] QCA 518, considered R v Smith [2004] QCA 417, considered The applicant appeared on her own behalf D J Mayall for the respondent The applicant appeared on her own behalf Director of Public Prosecutions (Commonwealth) for the respondent [1] HOLMES JA: I agree with the reasons of Atkinson J and the orders she proposes. [2] CHESTERMAN JA: The facts relevant to the offence and to the offender, the applicant, are comprehensively set out and analysed in the reasons for judgment of Atkinson J. I gratefully adopt her Honour s rehearsal which allows me to express my dissenting opinion quite briefly. [3] Atkinson J notes, correctly with respect, that when dealing with those convicted of deceiving the Commonwealth in order to obtain a financial advantage: A sentencing judge has a very wide discretion as to the appropriate period of imprisonment, if any, which must be served before an offender is released on recognizance. The breadth of the discretion, of course, increases an applicant s difficulty in persuading a court that a sentence is manifestly excessive beyond the permissible range of sentence. An applicant who seeks a reduction of sentence must demonstrate not that another sentence might have been appropriate, or even more appropriate than the one imposed. An application for leave to appeal against sentence cannot succeed unless the applicant demonstrates that the sentence actually imposed was not appropriate at all: that it was manifestly excessive because it was beyond the permissible range of discretionary judgment. [4] There is also the point that an exact comparison of the applicant s case with other like cases in an endeavour to find true consistency in sentencing is unattainable, as I pointed out (with the agreement of the Chief Justice) in R v Willoughby [2009] QCA 105 at [31]. There are always differences between offence and offender so that a precise comparison is impossible. What is possible is an examination of cases to discern a range within which the sentencing discretion is to be exercised. [5] One should also bear in mind the point made by the Chief Justice (with whom Jerrard and Keane JJA agreed) in R v Klasan [2007] QCA 268 at [34] that when reviewing a sentence allowance must be made for legitimate differences in approach by different judges called upon to exercise their discretion. [6] The applicant defrauded the Commonwealth systematically and persistently. In all she returned false declarations of income for periods aggregating about four years. Her reward for that dishonesty was the substantial sum of $50,000, in round figures.
3 [7] 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. [8] It may be that one aspect of the need for general deterrence is now less important than it was formerly in the case of those who, like the applicant, offend by fraudulently concealing income earned in their own names. The program of data matching between Centrelink and the Australian Tax Office is now more likely to detect those unlawfully claiming social security benefits while in paid employment. However, the affidavit of Mr Beaver shows that the data matching program will not inexorably catch all offenders. Centrelink s resources do not allow for all matched cases to be reviewed. There is also the point that honest discrepancies in description between a tax payer who is also a recipient of social security will have the result that no match will be detected. [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. [10] Atkinson J has referred to the relevant cases on appeal. There are, as well, a number of cases of sentences at first instance which are helpful and to which we were referred. These cases are within the parameters established by the appellate authorities. [11] In Jupp (Shanahan DCJ 3/9/2009), the defendant received single Parenting Payments over a period of three years and 10 months. She failed to advise the Department of Social Security of her marital status, her husband s income and her own income. As a result she was overpaid $47,285.88. The defendant took active measures to continue the overpayment. She was 37 years of age, had no prior convictions, entered an early plea of guilty, made full admissions during an interview with investigators, had taken significant steps to make reparation and had care of a six year old child. She also suffered from a major depressive disorder which led to self-harming behaviour. Her relationship with her husband was dysfunctional and it was unclear what support, if any, he was providing to the defendant and the family. The sentencing judge accepted that the defendant had used the money for personal living expenses. The sentence was two years imprisonment to be released after serving five months on recognisance in the sum of $2,000, conditioned that she be of good behaviour for a period of two years. The defendant was also ordered to pay reparation in the sum of $37,800.72. [12] In McKenzie (Trafford-Walker DCJ 1/12/2009), the defendant received single Parenting Payments over a period of almost six years. She failed to advise the Department of Social Security that she was employed and she failed to declare any
4 income from her employment. As a result she was overpaid $46,739.93. The defendant was 48 years of age, had no prior convictions, made admissions during an interview with investigators and pleaded guilty to an ex officio indictment. The defendant had children to support including a 16 year old son and an adult daughter who has a disability. The defendant was sentenced to two years imprisonment to be released after serving four months on recognisance in the sum of $1,000 conditioned that she be of good behaviour for a period of two years. The defendant was also ordered to pay reparation in the sum of $46,739.93. [13] In the matter of Ball (Dick DCJ 11/8/2005), the defendant was sentenced to a period of two years imprisonment. A period of actual custody of four months was imposed. This defendant also received single Parenting Payments over a period of six years. She failed to advise the Department of Social Security of her income from casual employment. She was overpaid $54,246.80. The defendant was 51 years of age, had no prior convictions, had made full admissions during an interview, had made some efforts towards reparation and pleaded guilty to an ex officio indictment. She was responsible for raising five children, three of whom were still at home at the time of sentence. The sentencing judge accepted that the offences were not motivated by greed. The defendant suffered a sub-arachnoid haemorrhage after the charge period and has ongoing medical conditions (memory impairment and serious hypertension). The sentencing judge accepted that the defendant s health problems meant that any time in prison would be more difficult for the defendant than for a fit person. The defendant was also ordered to pay reparation in the sum of $49,701. [14] In Keeble (Forde DCJ 2/3/2006) the defendant received Newstart Allowance over a period of five years and nine months. He failed to advise the Department of Social Security of his causal employment and his income from that employment. As a result he was overpaid $46,706.20. The defendant was 46 years of age, had no significant criminal history, cooperated with authorities (although did not participate in a formal interview), had made efforts towards reparation and pleaded guilty to an ex officio indictment. The sentencing judge accepted that the money was used for the defendant s family and not for greed. The defendant was sentenced to two and a half years imprisonment to be released after serving nine months on recognisance in the sum of $1,500 conditioned that he be of good behaviour for a period of three years. The defendant was also ordered to pay reparation in the sum of $43,677.84. [15] In Price (Shanahan DCJ 23/5/2003), the defendant received Newstart Allowance over a period of five years and six months whilst she was married. She failed to advise her marital status and her husband s income to the Department of Social Security. She was overpaid $49,647.66. The defendant was 51 years of age, had no prior convictions, had made some efforts towards reparation and pleaded guilty to an ex officio indictment. The sentencing judge accepted that the defendant had been subjected to abuse in her early life and by her first husband which partly explained why the offence occurred. The defendant also suffered from, and had been treated for, depression. The defendant was sentenced to two and a half years imprisonment to be released after serving six months on recognisance in the sum of $1,500 conditioned that she be of good behaviour for a period of three years. The defendant was also ordered to pay reparation in the sum of $49,347.67. [16] I would agree that Edwards [2001] QCA 93 is a more serious case. The moderate penalty imposed may reflect the circumstance that the sentence was imposed on an appeal by the Director of Public Prosecutions.
5 [17] These decisions, and the appellate decisions referred to be Atkinson J, establish that the range of penalty, which is quite wide, was between two and two and a half years imprisonment, with between three and nine months to be spent in actual custody. [18] The applicant in her own written submission contended that the appropriate sentence was one which required her to spend four months in custody. [19] I would accept that a sentence of two years imprisonment with release after three months as proposed by the majority would be within range. I cannot, however, accept that the sentence imposed was beyond range. It is not, in my respectful opinion, a proper exercise of appellate power to adjust a sentence which is within range. [20] I would refuse the application. [21] ATKINSON J: The applicant, Robyn Kaye Newton, was convicted on 20 January 2010 after pleading guilty in the District Court in Brisbane to two counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). On each count she was sentenced to two years imprisonment to be released after serving five months upon giving security by recognizance in the sum of $2,000 conditioned that she be of good behaviour for a period of two years. The sentences were to be served concurrently. She was also ordered to make reparation to the Commonwealth in the sum of $47,293.30 pursuant to s 21B of the Crimes Act 1914. She has applied for leave to appeal the sentence imposed on the ground that it was manifestly excessive. Circumstances of offending [22] The applicant s fraud on the Commonwealth occurred as a result of her failure to declare to Centrelink income she received from employment between 17 June 2003 and 17 January 2007 (count 1) and then between 17 May 2007 and 9 January 2008 (count 2). In the period covered by count 1 she received $42,701.90 from the Commonwealth to which she was not entitled and in the period covered by count 2 she received $7,677.72 to which she was not entitled leading to a total overpayment of $50,379.62. [23] The applicant was in receipt of a benefit known as the Parenting Payment Single from 31 August 1999. She commenced employment with the Endeavour Foundation on 14 November 2002 but failed to disclose that employment to Centrelink at that time and thereafter. When in receipt of the Parenting Payment Single she was not required to lodge regular continuation forms in order to continue to receive her benefit. She was, however, under a continuing obligation to advise Centrelink of any changes in her personal circumstances, including if she commenced paid employment, within 14 days of that change. Centrelink sent at least two letters to her in this period as a reminder of her reporting obligations. [24] On 17 December 2003, the application lodged a claim for Newstart Allowance as she no longer had any dependant children. In the claim she indicated that she was not doing any paid work. The claim was granted and the applicant was paid Newstart Allowance, back dated from 12 December 2003, until 29 October 2006. Whilst in receipt of the Newstart Allowance, the applicant was required to report to Centrelink at various times on either a two weekly, four weekly or 12 weekly basis
6 giving details of income from employment in order to continue payment of her benefit. She did this via lodgement of continuation forms and the use of the interactive voice response automated telephone system. The applicant significantly underdeclared her income for two fortnights in February 2004 and did not declare any income from the Endeavour Foundation for the remainder of the fortnights during the periods of the offences when she was required to lodge forms whilst she was in receipt of the Newstart Allowance. [25] On 16 October 2006, the applicant made an application for Carer Allowance to care for her adult daughter who suffered from cystic fibrosis. In that application she indicated that she was not currently working. The claim was granted and she commenced receiving Carer Allowance from 30 October 2006 until 17 January 2007. The applicant was not required to report regularly in order to continue payment of the Carer Allowance however remained under a continuing obligation to advise of changes in her circumstances. She failed to declare her income from her employment with the Endeavour Foundation. [26] Between 17 January and 17 May 2007 the applicant did not receive any Centrelink benefits. On 30 May 2007 she made a claim for a Newstart Allowance in which she indicated that she was not doing any paid work. The claim was granted and she was paid Newstart Allowance back dated from 17 May 2007. As part of her obligations on receipt of that allowance she was required to report fortnightly and lodge continuation forms giving details of income from employment. On 29 November 2007 this was changed to require her to report on a 12 weekly basis. She did not reveal her employment with the Endeavour Foundation. [27] The applicant was employed by the Endeavour Foundation as a part-time disability support worker from 14 November 2002. As such, she would have been a PAYG taxpayer. At no time, apart from the two fortnights in 2004 referred to, did she declare any income from that employment; and during the two fortnights in February 2004, she underdeclared the income she received. She did however sporadically declare small amounts of income from casual employers during the period. The offences only came to light when data was matched between Centrelink and the Australian Taxation Office and a subsequent entitlement review was commenced on 12 September 2007. [28] The applicant was paid $55,390.99 in benefits during the period of the offences, just over four years. Centrelink has calculated that she was entitled to receive $5,011.37 and was therefore overpaid $50,379.62. At the time of sentence she had repaid $3,086.32 by way of a debt recovery arrangement with Centrelink. [29] Offending of this type is serious and often regarded as difficult to detect. The public interest relies on the honesty of those who receive benefits from the Commonwealth. In R v Hurst; ex parte Cth DPP [2005] QCA 25 at p 7 McMurdo P, with whom Mackenzie and Chesterman JJ agreed, observed: 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 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
7 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: compare R v Wright (1994) 74 A Crim R 152 and R v Holdsworth CA No. 94 of 1993, 22 June 1993. Because of electronic data matching between the records held by the Australian Tax office (ATO) and Centrelink, it is now much easier to detect offending of the type in this case where the applicant did not use a fraudulent identity. She used her own name and took up employment where she would become a taxpayer. If data matching took place between the two government departments, her offending was almost certain to be detected. [30] The respondent was given the opportunity to put in further evidence on the question of what data matching took place to address the question of how difficult or otherwise such offending is to detect. That evidence shows that, as well as other sharing of information on a weekly or other regular basis, data matching is carried out between records relating to PAYG taxpayers and their partners and recipients of Commonwealth benefits twice a year. Where anomalies are detected between the income declared to Centrelink and the ATO, the details are loaded into an electronic integrated review system (IRS) and reviewed. The Program Protocol for this data matching was lodged with the Privacy Commissioner in May 2004. The protocol shows that depending on the result of the IRS review, further action may be taken, including reduction or cancellation of payment, raising of a debt and where warranted, prosecution. [31] The PAYG electronic data matching program was first introduced on a pilot basis. The pilot project, trialled in parts of the country, led to almost $16,000,000 in savings and so a permanent program of data matching was introduced on the lodging of the Program Protocol in May 2004. Paragraph 9.3 of the Program Protocol sets out its effects on compliance and deterrence caused by the increased likelihood of detection: The community s compliance with the law increases when it knows that Centrelink has effective controls in its system to detect incorrect payments and fraud. That is, people claiming or receiving income support payments are more likely to comply voluntarily with the law if they know that: there is a high probability that incorrect payments will be detected; they will be required to repay any debt; and they may be prosecuted if they attempt, by fraud or misrepresentation, to obtain payments to which they are not entitled. [32] It appears therefore that offending of the kind committed by the applicant in this case is no longer as difficult to detect as it once was. As the protocol recognises, the likelihood of detection has a significant deterrent effect. [33] Moreover, as the respondent submitted, the need for deterrence should be appropriately balanced against circumstances pertaining to an offender. In Oag, the Court observed: 1 1 [1993] QCA 225 at 3.
8 The need for deterrence must be balanced against the applicant s personal circumstances, including his remorse and the problems which his family were experiencing at the time. Circumstances of the applicant [34] The matter was dealt with by way of an ex officio indictment after the applicant indicated at a very early stage that she would plead guilty to the offences. She was aged between 47 and 52 years at the time of the offending and was 53 at the time she came to be sentenced. She had no criminal history. [35] At the time of sentence she was single with no dependant children. Her daughter, who suffered from cystic fibrosis and was under her care until 2007, died in 2008. Her surviving daughters were aged 22 and 26. Her husband died in 1995 from asbestosis. [36] There was no suggestion that the monies obtained from Commonwealth benefits were used to fund a lavish lifestyle; rather they were used for day to day living expenses. Her work was as a support worker in a residential facility for people in Caboolture with wide ranging disabilities. A reference tendered on her behalf at sentence spoke in glowing terms of her skill in performing and her commitment to what is often challenging work. [37] The applicant, who represented herself, submitted that the sentence that should have been imposed was 18 months imprisonment to be released after she had served four months. [38] Section 16A(2) of the Crimes Act then sets out a non-exhaustive list of the matters to which the court must have regard when imposing sentence. The learned sentencing judge said that he was satisfied that because of the amount involved and the period of time over which the offences were committed that imprisonment was the only appropriate penalty. He correctly recorded that a review of sentences in comparable cases showed that the appropriate head sentence was two years. In doing so, his Honour was, I infer, satisfied that, having considered all other available sentences, no other sentence was appropriate in the circumstances. Section 17A(1) of the Crimes Act relevantly provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the judge is so satisfied. The sentence of two years imprisonment recognises, in particular, the seriousness of the crime, the need for appropriate punishment and a sentence which has a deterrent effect both on the applicant and others who might find themselves tempted to commit such an offence. The need for deterrence is now also met by the likelihood of detection. [39] A sentencing judge has a very wide discretion as to the appropriate period of imprisonment, if any, which must be served before an offender is released on recognizance. This was recognised by this court in R v Ruha, Ruha & Harris; ex parte Cth DPP 2 where it was observed that: Part 1B of the Crimes Act, under which sentencing judges are given a discretion to direct release on recognizance at any time from the commencement to the end of the term, is consistent with the application of the general principle that material differences in 2 [2010] QCA 10 at [50].
9 particular cases might justify materially different sentences, including in the specification of the pre-release period. (emphasis added) [40] The more specific sentencing principles which are relevant were set out in R v Ruha, Ruha & Harris; ex parte Cth DPP at [46] by reference to the judgment of Buss JA in Bertilone v The Queen. 3 They include: Provisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; the nonparole period is the minimum period of imprisonment that justice requires the offender to serve; it mitigates the offender s punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period; and relevant factors to be taken into account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence. [41] The sentencing judge may, according to the specific circumstances of the offence or the offender, impose a recognizance release order which will take effect at a specified time from the beginning to the end of the term of imprisonment imposed. [42] The experienced sentencing judge specifically took into account the applicant s early plea of guilty, her efforts at reparation and the nature of the work she had undertaken to ameliorate the effect of the head sentence so that she would be released on recognizance after serving five months of the sentence. He did not specifically mention her lack of any criminal history, the illness and death of her daughter nor the fact that the moneys were used to pay day to day expenses rather than to support a lavish lifestyle. The sentence was imposed before the decision of this court in R v Ruha, Ruha & Harris; ex parte Cth DPP referred to earlier which emphasised that an offender may be released on recognizance at any time from the commencement of the term of imprisonment. Comparative sentences [43] The range of sentences approved in the Court of Appeal shows the variety of circumstances in which crimes of this type are committed. [44] R v Smith [1999] QCA 518 concerned fraudulent claims for social security benefits in three different names over three years. The applicant received $32,416.78 to which he was not entitled and had made no restitution. Some of the payments were obtained while he was in prison under a different name. The offending was described as revealing very deliberate fraud. The applicant had a substantial criminal history including many offences of dishonesty. When sentenced for the offence of defrauding the Commonwealth, he was serving a term of imprisonment of two years imposed by the District Court seven months earlier on five counts of possession of a motor vehicle with intent to deprive with circumstances of aggravation. 3 [2009] WASCA 149 at [29]-[33].
10 [45] Circumstances in mitigation were limited to his plea of guilty on an ex officio indictment and his co-operation when apprehended. He had made some commendable efforts at rehabilitation since he was imprisoned. [46] The court upheld a sentence of two and a half years imprisonment with an order for release after serving 12 months upon giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for two and a half years. The sentence was ordered to be served concurrently with the sentence which had been imposed in the District Court for unrelated offences. [47] That offending behaviour was significantly worse than the present case involving the assumption of false identities and the receipt of benefits in a number of different names by a person with a significant criminal history with little in his favour except his plea of guilty. [48] Another significantly worse case than the present was R v Edwards; ex parte Cth DPP. 4 In that case the offender s behaviour occurred over two lengthy periods between 1988 to 1991 and 1996 to 2000. The total amount of money defrauded was $81,618.85. It involved systematic defrauding of the Commonwealth, including the establishment of false identities and the production of false documents. The offender had a significant criminal history and was on probation for offences of fraud at the time of these offences. She was sentenced to two and a half years imprisonment to be immediately suspended upon her entering into a recognizance to be of good behaviour secured in the sum of $2,000 for a period of three years. It was also a condition of the recognizance that she be subject to probation supervision for a period of two years. A reparation order was made in the sum of $72,100.57. [49] The Commonwealth Director of Public Prosecutions successfully appealed the recognizance order and it was ordered that she be released after serving six months of the sentence of two and a half years on a recognizance to be of good behaviour for a period of three years with security of $2,000. She received social security payments in two different names and was also in employment. A warrant had had to be issued for her arrest on 12 of the charges she faced. The conduct which was the subject of the principal charge, was committed substantially after her failure to appear and there was a warrant for her arrest. [50] Williams JA held at p 4 that there was deception involving a high degree of cunning employed by the respondent in order to obtain payments to which she was not entitled. It involved the use of false names and the use of false documentation to satisfy authorities that the name given was genuine. The use of false identification makes the conduct more reprehensible. She had in addition what his Honour referred to as a remarkable criminal history of offences involving false pretences for fraud. The offender defrauded the Commonwealth of most of the money while she was on probation. Given the number of times when she had been sentenced to probation which had not operated as a deterrent the time had been reached, as Williams JA said, when a custodial sentence was the only appropriate sentence to impose. [51] The mitigating factors in her favour were that she was the mother of two children who were essentially dependant on her and that she had been in the community since the sentence was imposed and had responded reasonably satisfactorily to the probation imposed with that sentence. 4 [2001] QCA 93.
11 [52] In R v Smith 5 a sentence of two years imprisonment with a release date of three months on recognizance was upheld on one count of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage. Mr Smith was a relatively young man aged between 24 and 27 at the time of the offences. He pleaded guilty at an early stage. He had no criminal history. [53] The circumstances of the offences were quite unusual. Smith was receiving Commonwealth benefits to which he was entitled. At the request of a Mr Waller, he made a fraudulent application for Newstart Allowance in the name of Scott Paul Baker. He used false documentation and assisted, when asked by Waller, to change from a Newstart Allowance to an Austudy Allowance. Waller instigated the offences and profited from them. Smith gained no tangible financial benefit. Waller received all of the $30,195.43 dishonestly obtained. [54] Prior to committing these offences Smith developed a depressive illness. He was in employment and repaying Centrelink so that the debt had been reduced to $28,755.32. As McMurdo P held at [17]: The offences were committed with deliberation and deceit and planned over a lengthy period. Mr Smith was an essential part of that deceit. It is not unusual that those committing offences of this type have no previous convictions. Sometimes a catalyst for the offending behaviour is desperate financial pressure. That was not the case here. The serious aspect of these offences is that they constitute an abuse of a system which provides community support to the genuinely needy and which necessarily operates on the assumption of the honesty of those applying for the support. Offences of this type are often hard to detect. General deterrence is an important feature in the sentencing of those who, like this offender, abuse our community s social security scheme, even where financial gain goes to another. [55] Her Honour took the view that in assisting in the perpetration of the fraud he acted with deliberation and a degree of sophistication. The use of false identity makes such a crime difficult to detect. A sentence of imprisonment for two years to be released after three months on a recognizance for three years and the amount of $3,000 was upheld as well within a sound sentencing discretion. [56] Smith s offending was more deliberate and sophisticated than that of the applicant and, although Smith did not profit financially from his offence, the Commonwealth lost $30,195.43 of which only $1,440.11 had been recovered at the time of sentence. [57] When one considers the Queensland appellate authorities and the relevant factors listed in s 16A(2) of the Crimes Act such as the nature and circumstances of the offences, which, while they continued over four years, were relatively unsophisticated and did not involve exacerbating features such as the receipt of more than one benefit at a time or the assumption of false identities, the loss caused to the Commonwealth which the applicant had commenced to repay within her financial capacity, her early plea of guilty, her work with the disabled which is beneficial to the community, her unfortunate family circumstances, her use of the money only for everyday living expenses and her complete lack of criminal history, the order for her release at five months appears to be manifestly excessive. 5 [2004] QCA 417.
12 [58] I would grant the application for leave to appeal and allow the appeal only to the extent of ordering that she be released after serving three months imprisonment and otherwise leaving the sentence imposed in place. In view of the fact that by the time this decision is published, she will have served more than three months imprisonment, it is appropriate to order that she be released immediately.