Myers v Swan [2001] ACTSC 60 (22 June 2001)

Last Updated: 29 January 2002

BYRON SEAN MYERS v DONNA SWAN [2001] ACTSC 60 (22 June 2001)

CATCHWORDS

CRIMINAL LAW - appeal against severity of sentences imposed - offences of defrauding the Commonwealth and imposing upon the Commonwealth - periodic detention - no error of law - discretion on the part of the sentencing Magistrate - fresh evidence that the accused suffered from a psychiatric condition that would have contributed to his criminal behaviour and that imprisonment, even weekend detention, would increase the risk of suicide - appeal upheld - imprisonment and Community Service Order imposed.

Periodic Detention Act 1995, s 6

Crimes Act 1900, Div 2 of Pt 12 s 556J

DPP v Rogers (unreported, Supreme Court of Victoria, Court of Appeal, 20 April 1998)

On appeal from the Magistrates Court

No. SCA 78 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 22 June 2001

IN THE SUPREME COURT OF THE )

) No. SCA 78 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BYRON SEAN MYERS

Appellant

AND: DONNA SWAN

Respondent

ORDER

Judge: Crispin J

Date: 22 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The sentence of nine months imprisonment imposed in relation to offence number 40712 be confirmed.

3. The orders that the sentence be suspended after a period of six months and that such period be served by a periodic detention be set aside.

4. In lieu thereof the sentence be suspended immediately upon the appellant entering into recognizance himself in the sum of $1,000 to be of good behaviour for a period of two years and during such period accept supervision of the Director of ACT Corrective Services or his or her New South Wales counterpart including such directions as he may be given concerning psychiatric treatment or counselling.

5. The sentence imposed in relation to offence number 40704 be set aside.

6. In lieu thereof the appellant serve 208 hours community service.

1. This is an appeal against sentences imposed by Magistrate Doogan in relation to ten counts of fraud and imposition upon the Commonwealth.

2. The appellant, who was employed by the Australian Taxation Office from 23 July 1997 to 22 October 1999 pleaded guilty to the following charges:

(a) one count of imposing on the Commonwealth in August 1997 by an untrue representation concerning his prior employment experience with a view to obtaining an increased starting salary with the Australian Taxation Office;

(b) three counts of imposing on the Commonwealth in August and September 1998 by making false statements and providing receipts relating to accommodation in Sydney with a view to obtaining temporary accommodation allowance beyond that to which he was entitled;

(c) one count of defrauding the Commonwealth between August and January 1999 by making a false statutory declaration and providing false receipts in relation to the rent of premises in New South Wales with a view to obtaining reimbursement of rent to which he was not entitled;

(d) four counts of defrauding the Commonwealth between March and June 1999 by forging the signature of an authorising officer on movement requisition forms in order to obtain travelling allowance for personal travel and to have the air fares paid by the Commonwealth;

(e) one count of defrauding the Commonwealth between July 1998 and October 1999 by the use of cab charge vouchers provided by the Commonwealth on 132 occasions to travel unrelated to his duties.

3. On the charge of defrauding the Commonwealth by falsely claiming reimbursement of rent her Worship sentenced the appellant to nine months imprisonment but ordered that he be released after serving a period of six months upon entering into recognizance of $2,000 to be of good behaviour for a period of two years. It was a condition of that recognizance that he accept the supervision of the Director of Adult Corrective Services for a period of twelve months and obey all directions and instructions given to him by that officer particularly those relating to treatment and psychiatric counselling. Her Worship directed that the six month period be served by 24 periods of periodic detention. In relation to the charge of imposing upon the Commonwealth by untrue representations as to his prior employment history the appellant was sentenced to three months imprisonment but her Worship directed that that be served by way of twelve periods of detention and ordered that it be served concurrently with the other sentence. In relation to the other charges sentencing was deferred on condition that the appellant enter into the recognizance referred to earlier.

4. The appellant was born on 28 November 1973 and, accordingly, is now 27 years of age. The evidence before the Magistrate indicated that he had come from a troubled family background and that he and his sister had been abused physically and emotionally by both parents. At the age of 14 he had been sexually abused by a family acquaintance whilst working in his business on a casual basis. The offender was subsequently arrested, convicted and sentenced to a term of imprisonment. The appellant was obliged to give evidence in those proceedings and found the experience both stressful and emotionally destabilising. He received no parental support at this time. The sexual abuse and his involvement in the subsequent court proceedings plainly had a very damaging psychological impact upon him.

5. He began to use illegal drugs at 18, occasionally smoking marijuana and engaging in what was described as the "recreational use of ecstasy". He claimed that when he moved to Canberra his drug usage became serious and extended to the use of cocaine and later heroin. The author of the pre-sentence report stated that the appellant had admitted the offences "with a sense of disbelief that he was actually capable of such deceptive behaviour". The appellant appeared remorseful and genuine in his attempts to obtain help for his psychological problems. The author of the report said that he presented as a young man struggling to come to terms with his past who had been "reliable in his reporting and co-operative in his manner".

6. The appellant challenged the orders which the Magistrate had made on a number of bases.

7. First, he submitted that the sentence of periodic detention was inappropriate because he lived in Sydney, did not drive a car and if he were required to travel to Canberra by public transport each Friday might lose his current employment. He also pointed out that s 6 of the Periodic Detention Act 1995 provided that a court should not make such an order unless, inter alia, "the court is satisfied that it is appropriate for the offender to undertake such an order"; "the court has received a pre-sentence report in respect of the offender pursuant to Division 2 of Part 12 of the Crimes Act 1900" and "the court is satisfied that the offender consents to undertaking such an order". Whilst the Magistrates Court had received such a report, the appellant argued in essence, that there had been a breach of s 6 because the probation and parole officer had assessed him as unsuitable for periodic detention.

8. That argument may be readily dismissed. The officer had said only that the court "may consider" that a Community Service Order or periodic detention order could not be considered as the offender was residing in Sydney. In any event, whilst the court is required to receive a pre-sentence report it is the court and not the author of that report which must be satisfied that it is appropriate for the offender to serve a sentence by way of a periodic detention. It had not been suggested that the report had not been validly received pursuant to s 6 or that the appellant had not consented to the making of such an order. Indeed, it had been submitted on his behalf that the magistrate should consider making such an order rather than requiring him to serve a period of full time imprisonment.

9. Second, the appellant submitted that the Magistrate had placed too great an emphasis on issues of general and personal deterrence and too little weight on his subjective circumstances. In fact, the Magistrate referred to the fact that the appellant had no criminal history and to the references in the pre-sentence report concerning his troubled family background, the abuse he had suffered from his parents as a child and the subsequent sexual abuse. Her Worship did say that it was difficult to know how much credence could be given to a report based primarily on the information of the appellant whom she had found to be "a thoroughly deceitful person" but, in my opinion, her scepticism was entirely justified. The offences to which the offender had pleaded guilty involved numerous acts of dishonesty over a protracted period. Furthermore, whilst the report stated that the appellant's drug usage had escalated to the point where he had been trying to claim benefits to which he was not entitled in order "to support his drug habit", he admitted that he had stopped using drugs whilst in Sydney but that the pattern of dishonesty had continued.

10. In the proceedings before me the appellant sought to explain that evidence by claiming that as a result of his psychiatric condition he frequently found himself saying things that were quite untrue, especially when he had failed to take his medication. He said that that had occurred at the time he gave evidence in the Magistrates Court. Even in the light of the psychiatric report which he tendered on the hearing of the appeal, I found this suggestion quite unconvincing.

11. In any event, despite her understandable scepticism, her Worship seems have accepted that the appellant may have had an unhappy childhood and family life, though she expressed the view that such experiences could not be used as an excuse to condone criminal behaviour. Her Worship rejected the suggestion that in committing the offences the appellant had been motivated by a desire to support a drug habit when he came to Canberra and found instead that he had been motivated by greed. That finding was clearly open on the evidence before her. It does not demonstrate any failure to give due weight to the appellant's subjective circumstances or otherwise reveal appealable error.

12. Third, the appellant argued that the Magistrate had erred in concluding that there had been a high risk of him re-offending when there had been no evidence to support such a conclusion. He argued that her Worship had erred in finding that he had acted deceitfully in only recently informing his employer of the charges pending against him and then only due to a fear that the employer might discover the charges by reading a newspaper report. The appellant maintained that there was no statutory or common law duty for an employee to inform a private sector employer of his or her criminal history or of any offences of which he or she might be convicted.

13. I accept his submission that his failure to disclose the commission of the offences to his employer could not, of itself, be regarded as an act of deceit, though one can readily understand the Magistrate's concern that the employer had been left in ignorance of acts of fraud committed by the appellant upon his previous employer. I also accept that such non-disclosure did not, of itself, provide any basis for finding that the appellant may not have fully appreciated the gravity of his actions or the possible consequences of committing the offences or for concluding that he was "at a very high risk" of committing further offences. However, the nature and extent of the course of dishonest conduct and the period over which it was maintained provided ample grounds for her Worship's view that there was a high risk of further offences.

14. Fourth, the appellant submitted that the restitution order for the sum of $19,273.51 should be reduced by reference to the amount paid to the Australian Taxation Office in additional income tax upon the additional salary obtained by one of the offences. There was no evidence before the Magistrate as to the amount of tax involved and the appellant made no attempt to establish that figure in the proceedings before me. Furthermore, there was no evidence that the additional salary has been repaid. It will be open to the appellant to approach the Australian Taxation Office with a view to obtaining an amended assessment of income tax for the financial years in question but I do not accept that the Magistrate fell into error by making a reparation order which did not take into account any such offsetting reduction. That issue had not been raised before her Worship and she had not been given any basis upon which any such offsetting amount could have been calculated.

15. Fifthly, the appellant submitted his case was comparable to that of DPP v Rogers (unreported, Supreme Court of Victoria, Court of Appeal, 20 April 1998, per Phillips CJ, Tadgell and Ormiston JJA). In that case an employee of the Department of Social Security had committed a number of offences involving fraudulent obtaining of payments amounting to $16,312. Having taken into account the absence of any prior convictions and the contents of a psychiatric report, the Full Court upheld a decision to impose a suspended sentence. In my view a comparison with this case is of little value, firstly, because the offences and the circumstances in which they were committed were quite different and, secondly, because the decision of the Full Court was given in relation to a Crown appeal as to the perceived leniency of the offence and different considerations apply in appeals of that nature.

16. Accordingly, I do not accept the learned Magistrate fell into appealable error sufficient to vitiate the exercise of her sentencing discretion.

17. However, during the hearing of the appeal I granted leave for the appellant to adduce further evidence consisting of a report from a psychiatrist, Dr Richard Sippe, and the judgment given upon the sentencing of the man who had sexually abused the appellant.

18. Dr Sippe first saw the appellant in May 2000 which was after the charges for the relevant offences had been laid. He diagnosed major depression against a background of cyclothymia and a dissociative identity disorder. He indicated that the appellant's "depression/bipolar mood disorder" had responded reasonably well to standard treatment with anti depressants and mood stabilisers and that psychotherapy should be focussed on facilitating consolidation of identity and integrating what he described as the appellant's "fantasy personae". Dr Sippe said that in August 2000 he had advised the appellant that his psychiatric history was relevant to the court proceedings he faced but that the appellant had said that he had been terrified of revealing what he considered to be bizarre behaviour and had rejected his advice. Most significantly, Dr Sippe said that he believed that both the dissociative identity disorder and the mood disorder had contributed to the behaviour which had led to the commission of the offences. He also said that he had serious concern that even weekend detention would increase the risk that the appellant might commit suicide.

19. This evidence was not before the sentencing magistrate and its subsequent production can obviously provide no basis for the appellant's contention that her Worship placed undue emphasis upon the need for deterrence or insufficient weight on his subjective circumstances on the material available to her. Nonetheless, it is appropriate that I consider the psychiatrist's report and the observations made by the judge who sentenced the man who had sexually abused the appellant. The appellant is entitled to argue that fresh evidence of this nature may provide adequate grounds for setting aside the sentences imposed upon him even if no error on the part of the Magistrate can be demonstrated.

20. As the Magistrate observed in relation to the pre-sentence report, it is difficult to know how much credence should be given to opinions based substantially upon a history given by a person who has pursued a course of almost constant dishonesty over a long period of time. Furthermore, as I have mentioned, the appellant first consulted Dr Sippe only after the charges had been laid. He was then 26 years old and the sexual assaults said to have been largely responsible for his psychiatric problems had occurred some 12 years earlier. Yet there was no evidence of any earlier psychological assessment. Nor was there any evidence that he had sought psychiatric treatment during the period in which he had been committing the offences, despite his claims that he had done so to support a drug dependency caused by depression and other emotional difficulties and the fact that he was on sick leave towards the end of that period. Dr Sippe was not available for cross-examination as to the basis for the conclusions expressed in his report.

21. Despite these misgivings, I do not think I would be justified ignoring the serious concern which he has expressed about the sentences increasing the risk of suicide. Dr Sippe is a psychiatrist who had the opportunity of assessing the appellant on a number of occasions over a period of some months. He was well aware of the fantastic nature of some of the appellant's claims. Indeed, he took them into account in forming his diagnosis. The respondent did not seek any adjournment to permit cross-examination with a view to challenging the validity of his conclusions. The offences, though serious, are not so grave as to warrant a custodial sentence, even one of periodic detention, if it would significantly increase the risk of aggravating the appellant's psychological condition to the extent that he might die by suicide.

22. For these reasons I have been forced to conclude that the appeal should be upheld.

23. Nonetheless, it is appropriate that significant penalties be imposed. In the circumstances, I think it is appropriate to wholly suspend the sentence of nine months imprisonment in lieu of the order requiring him to serve six months by way of periodic detention and, to impose, in lieu of the sentence of three months imprisonment, an order requiring the appellant to perform two hundred and eight hours of community service. Whilst s 556J of the Crimes Act 1900 provides that a Court shall not make a Community Service Order unless the person in question consents, the appellant in his submissions to me sought the making of such an order and I am satisfied that his consent was necessarily implicit in those submissions.

24. It is my intention that the suspended sentence provide a "Damocle's sword" which will hang over the appellant's head during the period of the recognizance and should ensure that he continues to receive psychiatric treatment and refrain from committing further offences. The Community Service Order will require him to return to Canberra and do some work for the benefit of the community. Any further offence or substantial breach of the recognizance will be likely to result not in the reinstatement of a sentence of periodic detention but rather a sentence of full time imprisonment.

I certify that the preceding twenty-four (24) 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 appellant: Byron Sean Myers, self-represented appellant

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 29 May 2001

Date reserved: 29 May 2001

Date of judgment: 22 June 2001