Cruse v Treminio [2001] ACTSC 59 (22 June 2001)

Last Updated: 29 January 2002

WENDY CRUSE v RICARDO TREMINIO [2001] ACTSC 59 (22 June 2001)

CATCHWORDS

CRIMINAL LAW - sentencing - social security offences - whether sentence requiring actual service of some period of imprisonment required save in special or exceptional circumstances - whether such a sentence an appropriate "starting point" - principles applicable on Crown application to review sentence due to perceived leniency.

R v Van Tung Luu (CCA 7 December 1984, unreported

R v David Fernanda Medina (CCA 28 May 1990, unreported

R v Mears (1991) 53 A Crim R 141

R v Jennifer Rose Purdon (NSW CCA 27 March 1997, unreported

Kovacevic [2000] SASC 106; (2000) 111 A Crim R 131

R v Tait (1979) 46 FLR 386

R v Cobb (1999) 84 FCR 450

On appeal from the Magistrates Court

No. SCA 32 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 22 June 2001

IN THE SUPREME COURT OF THE )

) No. SCA 32 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WENDY CRUSE

Applicant

AND: RICARDO TREMINIO

Respondent

ORDER

Judge: Crispin J

Date: 22 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The sentences of the Chief Magistrate be confirmed.

1. On 27 April 2001 I ordered the respondent to show cause why a decision of the Magistrates Court made on 30 March 2001 should not be reviewed. In the proceedings before the Magistrates Court the respondent had pleaded guilty to two offences of knowingly obtaining payments of social security benefits which had been payable only in part. One offence had related to the receipt of NewStart allowance payments between 9 January 1996 and 19 March 2000 whilst the other had related to similar payments made between 20 March 2000 and 14 August 2000. As a consequence of these offences the respondent received, in all, $36,914.90 to which he had not been entitled. The offences had been maintained over a period of approximately 4½ years during which the respondent had been employed as a cleaner but had failed to declare such employment on any of the forms which he had apparently been required to submit at fortnightly intervals. The Chief Magistrate imposed a suspended sentence of nine months imprisonment on one charge and fined the respondent the sum of $1,000 on the other.

2. On the hearing of the review Mr Lalor, who appeared for the applicant, submitted that the sentences imposed were manifestly inadequate and argued that the Chief Magistrate had failed to apply the principles properly governing sentencing for offences of this nature.

3. Mr Lalor relied upon successive decisions of the New South Wales Court of Criminal Appeal to the effect that in the case of a fraud upon the social security system a custodial sentence should be imposed unless there were very special circumstances justifying some lesser order. See R v Van Tung Luu (CCA 7 December 1984, unreported) at 3; R v David Fernanda Medina (CCA 28 May 1990, unreported) at 4, R v Mears (1991) 53 A Crim R 141 at 145; R v Jennifer Rose Purdon (NSW CCA 27 March 1997, unreported) at 4-5.

4. Mr Lalor also referred the decision of the South Australian Full Court in Kovacevic [2000] SASC 106; (2000) 111 A Crim R 131. In that case a bench of five judges held that "in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence". The majority, consisting of Doyle CJ, Mullighan, Bleby and Martin JJ said, at 138, that in such cases "an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required". However, their Honours rejected the proposition that deterrence must take priority over all other considerations, adding at 139:

"There is one further thing that should be said. While imprisonment is likely to be required, it is preferable not to say that a case must be exceptional before a different approach is taken. For example, some offenders in this area are persons whose circumstances are extremely difficult, indeed distressing. An offender might be virtually destitute with dependents to support. An offender might act as a result of domestic pressures that few people could withstand. That might be a circumstance, coupled with other circumstances, that warrants a more merciful approach in imposing sentence, even though it is a circumstance which is not wholly exceptional, because it tends to recur with this type of offending. It is for that reason that it is safer to say that imprisonment is the starting point, rather than that the case must exhibit exceptional features before a court can properly refrain from making an order for imprisonment."

5. If I may say so with respect, those remarks appear to reflect a more soundly reasoned approach to sentencing principles than the somewhat inflexible rule laid down by the New South Wales Court of Criminal Appeal. The observations of Hunt CJ at CL in attempting to apply that rule to the facts of the case in Purdon only serve to underline the undesirability of such a rule. His Honour said, at 7, that there "were indeed compelling subjective circumstances shown in this case". Nonetheless, his Honour was "unable to see how the matters specified by [the trial judge] could amount to "very special circumstances" which would justify a non-custodial sentence". With respect to his Honour, there is a certain incongruity in the suggestion that leniency should not be compelled by compelling circumstances. More importantly, the rule requires a judge or magistrate to divert his or her attention from the question of whether a lenient sentence would be just and appropriate in the circumstances proven in evidence, to an enquiry as to whether some or all of those circumstances should be described as "very special".

6. Judges and magistrates frequently state that for offences of a particular kind sentences requiring the offenders to actually serve some period of imprisonment will generally be appropriate or even that such sentences will be appropriate save in exceptional circumstances. Such statements reflect the general experience of the courts and are intended to sound a warning to those tempted to commit such offences. They should not be seen as the adoption of legal rules which, in effect, reverse the principle that a sentence of imprisonment should be imposed only when no other penalty would be adequate, and cast some onus onto offenders to demonstrate that their circumstances are sufficiently unusual to merit a description such as "exceptional" or "very special". It is true that lenient sentences should not be imposed if they do not reflect a just response to the criminal conduct of offenders. It is also true that in cases of deliberate and sustained fraud imprisonment is likely to be required and the scope for leniency may be limited. However, where leniency is warranted, it should not be withheld merely because it might also be warranted in other cases. Neither justice nor mercy should be rationed.

7. Furthermore, there is no basis in principle for the adoption of any special rule in relation to frauds committed upon the Department of Social Security. The gravity of the offence must be gauged by reference to all of the relevant circumstances including the nature of victim and any adverse consequences of the fraud. Hence, it is appropriate to take into account the fact that welfare fraud may reduce the funds available to alleviate the poverty of those genuinely in need. However, similar considerations arise in relation to other cases of public revenue fraud and frauds committed upon charities. They may also arise in relation to a wide range of offences committed against private individuals or companies where as a consequence of the criminal behaviour other people suffer hardship.

8. In the present case the Chief Magistrate took into account medical reports indicating that the respondent suffered from a panic disorder or phobia and his fear of being confined. He observed that he would normally have considered a community service order or "probably" periodic detention because a substantial sum of money had been involved but indicated that he did not think that the respondent would be able to complete either community service or periodic detention. The prosecutor submitted that the only options were either a full time sentence or a suspended sentence but added that a significant amount of money had been involved. His Worship then said:

"Certainly, yes. Well, I suppose though its difficult jurisprudence, but just because someone has a psychiatric condition shouldn't be the reason they go to jail. . ."

9. Mr Lalor submitted that this approach did not adequately reflect the gravity of the offences and, in particular, the need for courts to protect the social security system from fraudulent abuse. He maintained that in the absence of exceptional circumstances it was a case which called for the imposition of a sentence which would have required the respondent to serve an immediate term of imprisonment. In the alternative, he argued that, consistent with the approach taken in Kovacevic, the Chief Magistrate should have regarded a sentence requiring the service of some period of full time imprisonment as the "starting point" and, even if it had been appropriate to consider more lenient options such as community service or periodic detention orders, the mere fact that such orders might prove impracticable did not justify even greater leniency.

10. On the other hand, Mr Mossop, who appeared for the respondent, relied upon the fact that offences of imposing upon the Commonwealth carry a lesser maximum penalty than offences of defrauding the Commonwealth and submitted that the respondent's psychiatric condition would, in any event, have constituted exceptional circumstances.

11. I accept Mr Lalor's submissions that the present offences were serious. They were sustained over a period of some 4½ years, involved the acquisition of a substantial sum of money to which the respondent had not been entitled, were facilitated by repeated failures to disclose apparently constant, though casual, employment and were apparently maintained until Centrelink discovered his employment and cut off payments. Hence, I also accept Mr Lalor's submission that the appropriate "starting point" would have involved recognition of the fact that in the absence of substantial mitigating circumstances the gravity of the offences warranted sentences of full time imprisonment rather than an order for community service or periodic detention.

12. It is true that there was some evidence that the respondent suffered a psychiatric illness which might have made his confinement unduly onerous but it was unclear whether this evidence was reliable. The author of the pre-sentence report noted that the respondent had presented as being "less than honest" and there might have been grounds for doubting the reliability of any history which he had given to the relevant medical practitioners. It is difficult to accept that he could have maintained employment as a cleaner for a period of some 4½ years while suffering from this illness and yet be too ill to fulfil the requirements of a Community Service Order. Furthermore, whilst he sought to attribute his deceptive behaviour in part to the need to access medical and pharmaceutical treatment it is clear that medical treatment was provided to him substantially without charge and that his pharmaceutical expenses could have been limited to about $400 per annum.

13. There were other subjective factors which should properly have been taken into account in his favour. In particular, he had pleaded guilty, he appeared to suffer from an acute sense of shame in relation to his predicament and he had made ten payments of $50 in reparation.

14. Despite these matters, the objective gravity of the offences, in my view, required the imposition of a sentence requiring the actual service of some significant period of imprisonment unless the psychiatric condition of the respondent could have been shown to have been so severe that such a sentence was likely to have endangered his mental health or otherwise be unduly oppressive.

15. It should be noted, however, that at the hearing before the Chief Magistrate, the prosecution neither referred the Court to the principles now relied upon nor sought to challenge the assertions advanced as to the respondent's psychiatric condition.

16. In R v Tait (1979) 46 FLR 386 Brennan, Deane and Gallop JJ observed at 388:

"Although an error affecting the sentence must appear before the appellant court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration". A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal". The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown`s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error."

[references omitted]

Their Honours added at 390 that:

"There would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him".

17. Whilst, as I have mentioned, the prosecutor appearing before the Chief Magistrate did at one stage submit that the only option was a custodial sentence, the case was not put on the basis so ably argued by Mr Lalor before me. More importantly, there was no real challenge to the evidence concerning the respondent's psychiatric condition. If there had been, it would have been open to the respondent to have given evidence in an attempt to explain apparent anomalies and to call the medical practitioners to give oral evidence supportive of the conclusions expressed in their reports.

18. As Mr Lalor fairly acknowledged, there is a principle of restraint in Crown appeals based upon the doctrine of double jeopardy which makes it inappropriate for an appellate court to simply impose upon a respondent the sentence that should have been imposed when he or she was first sentenced. Hence, in R v Cobb (1999) 84 FCR 450 at 453 Spender, Higgins and Weinberg JJ observed that in a Crown appeal it would not ordinarily be appropriate to substitute for a wholly suspended term of imprisonment a sentence requiring the respondent to actually serve a short period of imprisonment.

19. In the present case the sentence imposed upon the respondent may well have been inadequate but, having regard to the manner in which the proceedings were conducted before the Chief Magistrate and to the principles to which I have referred, I am obliged to conclude that it would be unfair to the respondent to now revisit the adequacy of the psychiatric evidence tendered on his behalf or the sentences imposed in the light of that evidence.

20. For these reasons the appeal must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 June 2001

Counsel for the applicant: Mr G Lalor

Solicitor for the applicant: Commonwealth Director of Public Prosecutions

Counsel for the respondent: Mr D Mossop

Solicitor for the respondent: ACT Legal Aid Office

Date of hearing: 28 May 2001

Date of judgment: 22 June 2001