Citation: Regina v Howe @ McGovern [2000] NSWCCA 405
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Wood CJ at CL, Dunford J, Carruthers AJ
Background
The respondent pleaded guilty in the District Court to three counts of defrauding the Commonwealth, contrary to section 29D of the Crimes Act 1914 (Cth). The offences spanned just over twelve years, during which she collected a Widow's Pension, a Sole Parent Pension, and Family Allowance payments from the Department of Social Security to which she was not entitled because she was in paid employment throughout that period. She facilitated the fraud by claiming benefits under her married name while working under her maiden name.
The total amount fraudulently obtained was approximately $115,118. On 43 out of 44 periodic review forms, she falsely declared she had done no paid work. The District Court sentenced her to twelve months' imprisonment to be served by periodic detention, and made a reparation order for the outstanding sum.
The Crown appealed on the ground that the sentence was manifestly inadequate, arguing that the sentencing judge had not identified "very special, exceptional or extraordinary circumstances" sufficient to justify departing from the established principle that full-time custody is required for offences of this kind.
Legal Issues
- Whether the imposition of periodic detention, rather than full-time custody, was manifestly inadequate for offences of defrauding the Commonwealth.
- Whether the respondent had established "very special, exceptional or extraordinary circumstances" that would justify a departure from the well-established sentencing principle requiring full-time custody for Commonwealth fraud.
- Whether fresh evidence placed before the Court of Criminal Appeal on appeal altered the sentencing outcome.
Decision
The Court of Criminal Appeal found that the sentencing judge's reasoning was flawed in two respects. First, his Honour's finding that the fraud was not motivated by greed was described as "generous indeed." Second, his finding that all monies were used to support the respondent's children was held not to be available on the evidence before him. Together, these errors undermined the foundation on which the departure from full-time custody had been justified.
A long line of authority, commencing with Van Tang Luu (1984) and consistently applied, establishes that general deterrence is a predominant consideration in sentencing for offences of defrauding the Commonwealth, and that full-time custody is required unless very special, exceptional, or extraordinary circumstances exist. The Court found that the evidence before the sentencing judge fell demonstrably short of that threshold.
However, the respondent placed fresh evidence before the Court of Criminal Appeal. That material concerned her 17-year-old daughter Natalie, who had just sat her HSC trial examinations, was affected by the uncertainty of the appeal outcome, and would have limited suitable alternative care arrangements if the respondent were imprisoned full-time. Taking that additional material into account, alongside the principles of double jeopardy and the absence of any provision for remissions, the Court concluded that the respondent had "scraped over the threshold" to satisfy the very special or exceptional circumstances requirement at the appellate stage.
Notwithstanding that the threshold was met on the fresh evidence, the Court was satisfied the sentence imposed below required increase. The sentence was set aside and replaced with a two-year term of imprisonment, still to be served by periodic detention commencing from 2 June 2000. No recognizance release order was made, as the Pre-Sentence Report indicated supervision on completion of the sentence would serve no purpose.
Orders Made
The orders of the District Court were set aside. In their place, the Court of Criminal Appeal made the following orders:
- The respondent is sentenced to imprisonment for two years, to be served by way of periodic detention, commencing 2 June 2000.
- No recognizance release order is made (supervision on completion of sentence was considered unnecessary).
- The reparation order of $115,118.40 is confirmed.
Key Takeaways
- A consistent line of NSW Court of Criminal Appeal authority holds that general deterrence is the predominant sentencing consideration for offences of defrauding the Commonwealth, and full-time custody is required unless "very special, exceptional or extraordinary circumstances" are established.
- Findings of fact made at sentencing must be available on the evidence; the Court of Criminal Appeal found it was not open on the evidence to conclude that all fraudulently obtained funds had been spent on the respondent's children.
- Fresh evidence placed before the appellate court can, in principle, bring a respondent over the threshold for exceptional circumstances, even where the evidence before the sentencing judge did not. Here, the daughter's imminent completion of the HSC and the absence of suitable alternative care tipped the balance at the appellate stage.
- Even where exceptional circumstances are established, the sentence imposed below may still be increased on a Crown appeal if it is otherwise manifestly inadequate. The two-year term represented a significant increase from the twelve months imposed at first instance.
- Under the Periodic Detention of Prisoners Act (as amended by Act No 43 of 1998), a sentencing court must first fix the term of imprisonment and only then determine whether the sentence is to be served in full-time custody or by way of periodic detention, consistent with the approach in R v Wegener [1999] NSWCCA 405.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 4AA, 16G, 19, 29D
- Justices Act, s 51A
- Periodic Detention of Prisoners Act
- Periodic Detention of Prisoners Amendment Act No 43 of 1998
Cases:
- R v Wegener [1999] NSWCCA 405 (8 December 1999)
- Van Tang Luu (NSWCCA, unreported, 7 December 1984)
- Hamman (NSWCCA, unreported, 1 December 1998)
- Kelvin [2000] NSWCCA 190 (18 May 2000)