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Court of Criminal Appeal 25 February 2000

Regina v Robinson

[2000] NSWCCA 556

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL OBTAIN BENEFIT BY DECEPTION S 89 SUBJECTIVE CIRCUMSTANCES APPLICANT SENTENCED TO FULL TERM CUSTODIAL SENTENCE

Citation: Regina v Robinson [2000] NSWCCA 556
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Carruthers AJ; Hidden J

Background

The appellant was a woman in her late twenties who had pleaded guilty to 89 counts of obtaining a benefit by deception under s 178BA of the Crimes Act 1900, carrying a maximum penalty of five years' imprisonment. The offences involved systematically misappropriating funds from her employer by completing company cheques payable to cash, taking advantage of access to signed blank cheques, and ultimately stealing a total of approximately $85,131. A further discrete offence involved deceiving a bank to obtain a personal loan of $20,000, apparently to conceal the earlier theft.

The offences were committed between 1995 and 1996, largely while the appellant was still subject to a recognisance arising from prior convictions for larceny as a clerk from another employer in the late 1980s. The appellant attributed her offending to mounting debts and a serious gambling addiction involving regular losses of $300 to $400 per day at poker machines. After being charged, she relocated with her husband and children to a small town in Western Australia, where poker machines were not available.

At the Dubbo District Court, Knight DCJ imposed concurrent sentences of a minimum term of 18 months followed by an additional term of two and a half years, with a parole eligibility date of 24 February 2001. The sentencing judge found special circumstances based on the hardship to the appellant's three young children and her need for a lengthy supervised rehabilitation period. The appellant sought leave to appeal on the basis that insufficient weight had been given to the impact of the sentence on her children.

  • Whether the sentencing judge gave sufficient weight to the hardship caused to the appellant's three young children by the imposition of a full-time custodial sentence.
  • Whether the sentence imposed was otherwise appropriate having regard to the appellant's subjective circumstances, criminal history, and the seriousness of the offences.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentence imposed by Knight DCJ. Carruthers AJ, with whom Hidden J agreed, held that a full-time custodial sentence was required given the objective seriousness of the offences and the appellant's prior criminal history, a significant portion of which involved similar dishonesty in a position of trust. The commission of the subject offences while still subject to a recognisance for earlier like offences was a weighty aggravating factor.

On the question of hardship to the children, the Court acknowledged the real difficulty caused to the family. However, Carruthers AJ observed that courts do not sentence in isolation from the administrative and legislative mechanisms that exist to alleviate hardship to mothers and their children in custodial settings. The Court noted several relevant options: an application for interstate transfer under the Prisoners (Interstate Transfer) Act, given that the family remained in Western Australia; an application for release under s 29 of the Correctional Centres Act 1952; and the availability of full-time residence programs enabling children to live with their mothers in a correctional centre.

In this case, the appellant's youngest child had in fact been born during the sentence (26 December 1999) and was residing with her in the correctional centre. A report from the Department of Corrective Services confirmed the child appeared happy and secure, providing what the Court described as a degree of comfort that the program was working effectively. While this report could not affect the outcome of the appeal, Carruthers AJ noted it for its relevance to the appellant's current circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where an offender has a prior record for materially similar offending, particularly dishonesty in a position of trust, and commits further offences while subject to a recognisance, a full-time custodial sentence may be required even where significant subjective circumstances exist.
  • The existence of hardship to an offender's children does not, of itself, prevent the imposition of a full-time custodial sentence. The Court of Criminal Appeal confirmed that such hardship is addressed, at least in part, through available administrative and legislative mechanisms rather than by a reduction in the sentence itself.
  • Relevant mechanisms the Court identified include: applications for interstate prisoner transfer, applications for release under the Correctional Centres Act 1952, and full-time residence programs permitting young children to reside with their incarcerated mothers.
  • Upholding the sentence, the Court declined to treat post-sentencing developments, such as a child born during the term, as grounds for resentencing, though it acknowledged those developments as contextually relevant.
  • A finding of special circumstances by the sentencing judge, grounded in hardship to children and the need for rehabilitation, does not automatically indicate that the balance between minimum and additional terms was sufficient to require appellate intervention in the overall sentence structure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA (obtain benefit by deception, now repealed)
- Correctional Centres Act 1952 (NSW), s 29
- Prisoners (Interstate Transfer) Act (NSW)
- Sentencing General Regulation 1996 (NSW)

Cases:
- Regina v Edwards (1996) 98 ACrimR 510
- Regina v Wirth (1976) 14 SASR 291