Choudhary v Commonwealth Director of Public Prosecutions [2013] QDC 280

DISTRICT COURT OF QUEENSLAND CITATION: Choudhary v Commonwealth Director of Public Prosecutions [2013] QDC 280 PARTIES: Rebecca Ann CHOUDHARY (Appellant) -and- COMMONWELATH DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO: No 205 of 2013 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court, Townsville DELIVERED ON: 22 November 2013 DELIVERED AT: Townsville HEARING DATE: 7 November 2013 JUDGE: Baulch SC DCJ ORDERS: 1. Appeal Allowed. 2. The sentence imposed by the learned Magistrate on the 15 July 2013 will be varied by substituting for the words “after serving one month” the word “forthwith”. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS AS SENTENCE MANIFESTLY EXCESSIVE - where the appellant pleaded guilty and was convicted of two offences of obtaining a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive the financial advantage – where the charges arose out of the appellant’s failure, during a period of 46 fortnights, whilst in receipt of a Newstart Allowance, to declare her income – where the total overpayment due to the appellant’s conduct was $19,699.12 – where the appellant was sentenced to six months imprisonment to be released on recognisance after serving one month – whether the sentence -- 1 of 8 -- was manifestly excessive. LEGISLATION AND CASES: Criminal Code 1995 (Cth) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Regina v Lopez [1999] NSWCCA 245 R v Burns [2007] NSWCCA 228 R v Law; Ex parte Attorney-General [1996] 2 Qd R 63 COUNSEL: G. Lynham for the Appellant E. Rutherford for the Respondent SOLICITORS: Malcomson Lawyers for the Appellant Commonwealth Director of Public Prosecutions for the Respondent [1] The appellant has appealed pursuant to section 222 of the Justices Act 1886 (Qld) against sentences of imprisonment imposed upon her in the Magistrates Court at Townsville on 15 July 2013 in respect of charges of obtaining financial advantage contrary to the provisions of the Criminal Code 1995 (Cth). Each charge related to the appellant failing to accurately to declare the total income she received from her employment during the charge periods which encompassed a combined total of 46 fortnights and which resulted in the appellant receiving overpayments of Newstart Allowance totalling $19,699.12 to which she was not entitled. [2] During the period covered by the two charges – 21 January 2009 to 22 January 2010 (27 fortnights) – and 20 July 2010 to 27 April 2011 (19 fortnights) – the appellant was employed by six different employers and earned a total of $49,520.63. [3] The offending ceased in April 2011. The offending was detected by a data match with the Australian Taxation Office on 25 November 2011. Almost a year later, the appellant was sent a letter by Centrelink inviting her to participate in a record of interview but she declined. She was charged by way of a complaint on summons filed on 21 March 2013. She pleaded guilty and was sentenced on 15 July 2013. Accordingly there was a delay of approximately two years and three months from the cessation of her offending to have been sentenced. The appellant says that none of that delay was attributable to her and that is true save for the fact that I would assume that at least part of the delay was as a result of the appellant’s initial failure to participate in a record of interview when invited to do so. [4] In respect of each of the charges she was sentenced to six months imprisonment suspended after she had served one month upon her entering into a recognisance in the sum of the $3,000 conditioned that she be of good behaviour for a period of two years. [5] The appellant says that that sentence was excessive having regard to her antecedents and the matters relied upon in mitigation. [6] The appellant had no criminal history until subject this appearance in court. She was born on 7 March 1983 and was therefore aged between 26 and 28 years at the time of -- 2 of 8 -- the offences and 30 at the time of sentence. She was a married woman with no dependents. [7] The following matters were placed before the learned Magistrate in mitigation: (a) The appellant had no criminal history; (b) The appellant was a very hard worker with an impressive work history; (c) The appellant was genuinely remorseful for her conduct; (d) The appellant had made full reparation to the Commonwealth; (e) The appellant had entered a timely plea of guilty. The appellant was charged by way of complaint on summons dated 21 March 2013 and pleaded guilty on 15 July 2013. Therefore her plea was entered at the earliest opportunity; (f) The appellant’s conduct was born out of a previous violent marriage and debts incurred by her during the marriage. Accordingly her offending was best described as being motivated by need and not greed. [8] The appellant says that that sentence was manifestly excessive and that the offences would have appropriately been dealt with by the imposition of a period of community service or a sentence of a wholly suspended imprisonment. [9] I note that the appellant served one day of the sentence before being released on bail. [10] The respondent does not take issue with the matters in court in mitigation but points to several serious aspects of the offending as justifying the sentences imposed. [11] First, the offending occurred over 46 fortnights and involved a total of almost $20,000. [12] Second, on 22 January 2009 when the appellant first applied for Newstart Allowance on the basis that she was unemployed, she was in fact employed and had been earning income since 30 December 2008. Accordingly the offending began with an intentional misrepresentation of the circumstances provided to Centrelink by her with knowledge that if the true circumstances were divulged to Centrelink the allowance would not have been granted in the first instance or at least would have been paid at a lower rate than was paid to her. [13] Third, the appellant was required throughout the period to keep Centrelink informed about such things as employment and marital status. No fewer than seven obligation letters were sent to the appellant reminding her of this obligation. During the period of the offending the appellant reported on 30 occasions by filling out and returning a fortnightly form, in each case making a false statement in that form and on a further 16 occasions the appellant reported via the internet. Those 46 reports became part of Centrelink’s records of which it relied in assessing the amount of benefit to be paid to the appellant. -- 3 of 8 -- [14] Fourth, during the period that she was in receipt of Newstart Allowance the appellant received income from employment with no fewer than six employers – Cowboys Leagues Club, Hotel Townsville, Frenchville Sports Club, Coffee Club Domain, Betty Blue and the Lemon Tart and Jupiter’s Townsville. The total amount that she earned during the period covered by the charges was approximately $1,076.54 gross per fortnight. She declared none of that income to Centrelink. [15] The appellant sought to add new grounds of appeal at the commencement of the hearing before me. During the course of discussion, I expressed the view that to propose new grounds were really no more than a particularisation of the basis upon which the appellant asserts that the sentence imposed upon her was manifestly excessive. It seemed to me that there was no need to amend the grounds of appeal although the statement of the proposed amended grounds provided a helpful summary of the way in which the argument would proceed. Counsel for the respondent did not disagree and accordingly the appeal proceeded upon the basis of the original ground only. [16] A transcript of the hearing before the learned Magistrate and his sentencing remarks was made available to me during the course of the argument before me. At the conclusion of the submissions made to him the learned Magistrate expressed his reasons briefly. I intend no criticism of the learned Magistrate to be taken from the use of the word briefly and I appreciate that proceedings in the Magistrate’s Court are conducted in a busy environment and there is often not time for detail reasons to be crafted and delivered. The relevant parts of what the learned Magistrate said are as follows: “I do take into account the number of matters. First of all the fact that you’ve pleaded guilty, because you’ve done so I do reduce the penalty I’d otherwise impose. Secondly, I take into account of the amount involved at first instance some $19,669.12. Further, this offending appeared - did occur over a 46 fortnight, which in total was some two years. I do take into account the reason why – why you did this, but you were given frequent reminders, and you knew about your obligation, and it was a deliberate act on your part not to disclose the significant amount of money and earnings over a period of time. To my mind you are entitled to a reduction in the penalty because you have repaid the amount in full. I have reviewed the authorities and while I concede that a – a period of imprisonment with immediate release might be within range, because you’ve failed to disclose for such a long time in relation to a significant amount of money, in my view, a period of imprisonment is the only appropriate sentence, and one albeit with a reduced time amount of time to be served is the appropriate sentence. So I recognise the – the repayment in two ways: I reduce the head sentence, and I reduce, somewhat, the actual time you will serve in custody. For this offence you are convicted and sentenced to 6 months imprisonment, and I order your release after serving one month upon giving security by reconnaissance in the sum of $3000 to comply with the condition of your good behaviour for a period of -- 4 of 8 -- two years. There is no order for restitution the amount has been paid in full” [17] There followed a brief discussion about the obligation of the court to explain the penalty in terms likely to be understood by the defendant. [18] The appellant says two things about the reasons. First, the appellant points out that the learned Magistrate did not refer to the fact that the appellant had no previous convictions. Second, the appellant says that the learned Magistrate did not refer to and did not give sufficient weight to the fact are that the appellant had voluntarily desisted from offending some two years before the proceedings against her were commenced. [19] In relation to the first matter, I would think it unlikely that the learned Magistrate was mistaken about the fact that the appellant had no previous convictions. Nothing that he said indicated that he thought that the appellant was other than a first offender and I would be reluctant to conclude that he did not give appropriate weight to her status as a first offender simply from the fact that although it was mentioned to him in the course of argument he did not repeat it when giving his reasons. [20] The second matter gives rise to a little more difficulty. Although the solicitor appearing for the appellant had informed the learned Magistrate of the period of time that had elapsed before proceedings were taken (see TRS 1–7 lines 5–8) there was no discussion as to the way in which that factor ought be approached by the court and the learned Magistrate did not give any indication of the significance that he attached to that matter. That was unfortunate as the cases relied upon on behalf of the appellant before me to give the indication of the significant weight are to be attached to that matter. As Adams J. said in Regina v Lopez [1999] NSWCCA 245 (at paragraph 17): “there is a substantial difference between the culpability of a person who voluntarily ceased fraudulent behaviour on the one hand and that of a person who on the other hand who continues that behaviour until it stopped by discovery of the crime” [21] While it is true that there was in that case not simply a failure to refer to the relevant facts but a misstatement of the period during which the offending had occurred over the principle is in my view an important one. [22] The decision in R v Burns [2007] NSWCCA 228 reinforces the importance of that principle. For clarity I will set out two paragraphs from the judgment in that case (26 and 27): “26. The submission in relation to the voluntary cessation of criminal activity requires some further comment. The respondent pointed out that the Crown submissions made no mention of this important factor and would appear wholly to have overlooked it. The respondent provided very detailed and extremely helpful written submissions in support of this contention, upon which he elaborated in oral submissions before this Court. 27. The voluntary cessation of criminal activity is well recognised as a significant factor to be taken into account by a sentencing tribunal. -- 5 of 8 -- In the present case, the last criminal act performed by the respondent was on 6 June 2006. He was not arrested until 30 June 2006. There is no suggestion that he had committed any further offences in the meantime.” [23] R v Burns was a somewhat different case involving drug offending but it is notable that the principle was thought to be of significance in that case against the background of a relatively short period of non-offending. [24] In the case before me neither party referred to the significance of that gap in time notwithstanding that the appellant’s solicitor had pointed out to the Court of the existence of the period of non-offending. I was told from the bar table and I have no reason to doubt that there are no reported decisions in Queensland in which the significance of the voluntary cessation of criminal activity on sentence has been the subject of a judicial comment. I see nothing in the Penalties and Sentences Act 1992 (Qld) or in the law of this State, which generally would lead one to conclude that that principle ought not be applied in Queensland. [25] In my view there is much to commend the principle particularly where there is a long period of non-offending as is the case in this case. [26] A number of authorities have been cited. They demonstrate that sentences ranging from non-custodial penalties to sentences of imprisonment with release after a short period have been applied in cases that are arguably similar. [27] The question is whether the current sentence can properly be said to be manifestly excessive. [28] To be manifestly excessive the sentence must be one which is outside the range of sentences which is appropriate for the particular offending or affected by some error by way of misapprehension, fact or some wrong principle in awarding sentence. [29] It is particularly important to note that this Court may not substitute its own opinion for that of the sentencing judge merely because this Court would have exercised discretion in a different manner from the manner in which the sentencing judge exercised his discretion. There is not and cannot be only one sentence which will be acceptable in any case. To assert that proposition is to deny the existence of the discretion which sentencing judges exercise daily. [30] It seems to me that because of the principle concerning the voluntary cessation of criminal activity has not been the subject of judicial discussion in this State and was not in fact referred to at all before the learned Magistrate, one cannot, as one would in respect of the failure to mention the absence of previous convictions, conclude that the matter was taken into account both the learned Magistrate notwithstanding his failure to mention it. [31] In that situation it seems to me that it is possible to identify an error. It is not an error of the learned Magistrate in the circumstances but an error in the exercise of the sentencing discretion having regard to the fact that the sentence was imposed without reference being made to that important principle. -- 6 of 8 -- [32] Counsel for the appellant went somewhat further in submitting that the case warranted consideration of the matters discussed in R v Law ex parte Attorney-General [1996] 2 Qd R 63. That case is one which deals with delay between commission of the offence and sentencing and identifies two were situations in which delay might be taken into account in mitigation of penalty. It (relevantly) depends upon the passage of time demonstrating more than a voluntary cessation of offending and being consistent with the offender embarking upon the path to rehabilitation. [33] My initial impression was that the appellant had great difficulty in satisfying that additional requirement, however as counsel for the appellant pointed out it was not in dispute, the appellant had embarked upon a course of training, she had maintained herself in employment and was offence free during the whole of the period that had elapsed since the offending ceased. Very little detail was placed before the learned Magistrate in respect of that matter. The learned Magistrate was told that the appellant was currently studying a Diploma in Community Service through the Australian College of Applied Psychology. A little later the solicitor said: “She has essentially got her life back on track. She is currently holding down a steady job. She is also currently studying in an attempt to further her prospects of employment. She is currently residing in Townsville with her family also reside so she definitely enjoys the support of an extended family.” [34] Again, if the learned Magistrate was to consider of this alternative submission, it would have been helpful if the solicitor for the appellant had expanded on this submission and drawn the learned Magistrate’s attention to the decision relied upon now. [35] It seems to me that it could not be said that there was sufficient material before the learned Magistrate to enable him to proceed on the basis of the second of the cases identified in R v Law. That case expresses the second proposition in of these terms: “…where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress” [36] It seems to me that it would be necessary to do more than simply state that to the appellant’s living circumstances had improved and that she was undertaking educational training to satisfy the test in R v Law. So it does not seem to me that the learned Magistrate was in error in proceeding on the basis that the second limb of that case was satisfied and it does not seem to me that the material before him could have justified such a finding even if the case had been referred to him. [37] It occurs to me that some might think that there is an inconsistency between the decision in R v Law and of the New South Wales authorities that I have referred to. I do not think that there is an inconsistency and because the principle which underlies at the New South Wales cases was not adverted to in R v Law which proceeded on quite a different basis. That case concerned sexual offending undiscovered at least partly because of threats made by the offender to the victim so that the offender could hardly -- 7 of 8 -- have been given the benefit of any delay that had occurred and it would not have been sensible to speak of a voluntary cessation of offending. [38] It is, in my opinion, however, appropriate to allow the appeal on the first basis identified. It seems to me that had the learned Magistrate been referred to the New South Wales cases and the principle contained therein he would have modified the sentence by allowing immediate release. He mentioned that matter in the course of his sentencing remarks and it seems to me that on that basis I should conclude that the matter was, in his view, very finely balanced. [39] Accordingly the appeal will be allowed and the sentence imposed by the learned Magistrate on the 15 July 2013 will be varied by substituting for the words “after serving one month” the word “forthwith”. [40] I will hear submissions as to costs although it seems to me that each party should pay their own costs having regard to the fact that the basis upon which the appeal has been allowed was not identified until the matter was on appeal. -- 8 of 8 --