District Court New South Wales Medium Neutral Citation: Mundy v R [2022] NSWDC 316 Hearing dates: 09 June 2022 Date of orders: 17 June 2022 Decision date: 17 June 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: 1 The proceedings are adjourned to allow the appellant to participate in The Glen for Women residential rehabilitation program conducted at Wyong Creek 2 The matter is to be returned for mention on 22 July 2022 to confirm the appellant's continued participation in the program and her compliance with bail conditions 3 The appellant is excused on the next occasion if represented by her lawyer upon confirmation that she remains a resident at the program. The appellant is granted bail commencing on 5 July 2022 with conditions Catchwords: CRIME — Appeals — Appeal against sentence CRIME — Fraud — Dishonestly obtain financial advantage by deception Legislation Cited: Crimes Act 1914 (Cth) Criminal Code (Cth) Cases Cited: Bugmy v R [2013] HCA 37 Category: Principal judgment Parties: Claudette Joan Mundy (Appellant) Commonwealth Director of Public Prosecutions (Respondent) Representation: Daniel Thomas (solicitor for the Appellant (ALS)) Ella Gordon (solicitor for the Respondent (CDPP)) File Number(s): 2022/00059046 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 01 March 2022 Before: Dick LCM File Number(s): 2022/00059046 REVISED EX TEMPORE JUDGEMENT This is the sentence appeal of Claudette Joan Mundy also known as Munday. INTRODUCTION 1. Claudette Joan Mundy appeared in the District Court of New South Wales during the sittings conducted at Bega commencing from Monday May 23, 2022, for appeals from the asserted severity of sentences imposed by a Magistrate at Bega on March 1, 2022. These were reached on Thursday June 9, 2022. 2. There were four offences upon which she was sentenced resulting in an aggregate sentence of 24 months to be suspended after nine months pursuant to s 20(1)(b) Crimes Act 1914 (Cth), with conditions including that she be of good behaviour for five years and accept supervision. She was ordered to pay a reparation in the amount of $25,000. THE OFFENCES 1. In the Magistrate's Court the offences charged exposed the appellant in each case to imprisonment for 24 months and a fine represented by 120 penalty units ($26,440). Upon indictment each offence has a maximum penalty of ten years imprisonment. 2. The offences were: Sequence 1 - obtain financial advantage by deception between 11 February 2020 and 24 July 2020 contrary to s 134.2(1) Criminal Code (Cth). Sequence 2 - attempt to obtain financial advantage by deception between 17 February 2020 and 3 August 2020 contrary to ss 11.1(1) and 134.2(1) Criminal Code (Cth). Sequence 3 - obtain financial advantage by deception between 1 March 2021 and 16 June 2021, s 134.2(1) Criminal Code (Cth). Sequence 4 - attempt to obtain financial advantage by deception between 19 April 2021 and 30 June 2021, ss 11.1(1) and 134.2(1) Criminal Code (Cth). THE TIMING OF THE PLEA OF GUILTY 1. The offender pleaded guilty in the Local Court after which a sentence assessment report was ordered. Upon her return to Court on March 1, 2021, sentence was imposed. PRE-SENTENCE CUSTODY 1. As I understand from the material I have there was no pre-sentence custody to be brought to account. THE FACTS 1. The facts are set forth in an agreed statement included in the Crown bundle, exhibit A. I do not intend to rehearse them in all their detail for the purposes of today's hearing. I shall refer to the executive summary provided in the document which sets forth that the appellant obtained and attempted to obtain a financial advantage by deception over two separate periods, a five-and-a-half-month period in 2020 related to sequences 1 and 2, and a three-month period in 2021 relating to sequences 3 and 4. 2. The advantage with the offender obtained or attempted to obtain related to Australian Government Disaster Recovery Payments. Sequences 1 and 2 relate to payments in relation to the 2020 bushfires, sequences 3 and 4 relate to the payments for flood damage. Sequence 4 also comprised an attempt to obtain a Job Seeker payment and Pandemic Leave Disaster payment by deception. 3. Sequence 1 comprised an overpayment of $18,000 consisting of 18 one off $1,000 emergency payments from Services Australia. Sequence 2 comprised the appellant's attempt to obtain a further $17,000. Sequence 3 comprised a flood overpayment of $13,000 consisting of 13 one off emergency payments from Services Australia, and sequence 4 comprised her attempt to obtain a further $11,500. 4. The facts provide in greater detail the conduct upon which the appellant engaged and the background against which it occurred. THE APPELLANT 1. The sentence assessment report that was provided asserted, amongst other things, that she demonstrated a lack of insight into her offending behaviour, and a lack of understanding of the impact upon the community of her misconduct, although she gave an indication of "feeling bad". There was an apparent lack of cognitive awareness regarding her criminal behaviour. She indicated a willingness to undertake intervention; it was noted that she would be unlikely to have the capacity to undertake community service. She is assessed with a medium to high risk of re-offending and supervision recommendations are specified. 2. She was born in 1974. Her antecedent record included in the Crown bundle commenced with a charge on 21 January 2004 of common assault. Thereafter she was before Courts for driving having never been licensed, providing a false name and address as a driver, using an unregistered motor vehicle, driving whilst disqualified, and obtaining property dishonestly by deception, larceny, shoplifting, and then the current matters. There are multiples of those offences. There are three other offences also but I attribute to them little weight in the assessment of this matter. 3. As I said the offender was born in 1974 and will turn 48 years of age this year. I have noted her record of antecedents. Tendered in her case was a report from a psychologist Vanessa Edwige, written on 19 May 2022, including reference to her history, beginning with what was a nurturing relationship with her parents in the home they provided. Regrettably though what followed was a period of significant hardship because of the unfortunate choices she made in her partners, ultimately leading to the birth of her children, some of whom were taken from her by authorities. THE PROCEEDINGS IN THE LOCAL COURT 1. She did not give evidence in the proceedings. I have been provided with a copy of the transcript of the Magistrate's reasons assessment of sentence and orders made. Although succinct his Honour attended s 16A Crimes Act 1914 (Cth) with reference to the matters the Court was required to bring to account including the facts and circumstances of the offences. He correctly concluded that no option other than imprisonment was appropriate. 2. For the determination of sentence appeals this is not a Court of error. The Court is required to look afresh at the material available and may receive further evidence dealing with options enlivened since the determination of the proceedings in the Local Court. THE APPELLANT'S CONTENTIONS 1. The argument offered on behalf of the appellant, with which I agree, is developed upon the fact that to the present time almost four months of the custodial component of the sentence is spent. By the time she is released to bail she will have exhausted a little more than four months of the custody imposed by the Magistrate leaving her with a little than five months remaining before she must submit to a recognizance release order. 2. Her participation in the program that is proposed, if successful, will extend from July 5, 2022, for 12 weeks to September 26, 2022, almost three months, leaving her a little more than two months left to serve if the sentence remains intact and an appropriate value is attributed to the constraints to which the appellant must submit as a participant in the proposed program. 3. Her successful participation in the program will lead to submissions in support of two outcomes when the matter resumes afterward. First, her rehabilitation will be facilitated, and secondly, upon a finding in those terms, to build upon the goals achieved there ought to be an adjustment in the custodial component of the sentence to allow the appellant to return to the community with the support available from her family to assist her reintegration without further offending. DISCUSSION 1. The appellant did not give evidence but called her sister Ellen who spoke of the challenges the appellant faced throughout her life from what was described as generational trauma, the product of the terrible history suffered by the appellant's forbears as indigenous Australians that in turn has impacted upon her. 2. I accept the sincerity of the evidence led from the appellant's sister, and regardless of the merit the proposition of generational trauma might have in circumstances where the appellant has had loving and supportive parents, the history revealed in the regrettable relationships she has formed provides solid support for the reasons offered for the pattern of her life up to the present time. The appellant was supported by several others who occupied the body of the Court and who I understand are members of her family. 3. I agree that there is little to be obtained for the benefit of the appellant or the community leaving her to serve the balance of her custody without the opportunity for intensive rehabilitation before she returns to the community. I accept that the constraints to which she will be subject in the program will satisfy the term quasi custody. 4. This is a matter attracting the principles espoused in such as Bugmy v R [2013] HCA 37. 5. The appeal was not argued fully before me and I therefore do not express a concluded view upon what should ultimately be the outcome. After discussion the matter was adjourned with the consent of both parties for consideration of bail conditions to allow the appellant to pursue the opportunity she has to participate in the rehabilitation program of 12 weeks at The Glen for Women at Wyong Creek, and to facilitate her admission to bail on July 5 2022 for immediate conveyance to the facility, thereby to obviate the risk that she might not reach it when her place will be available to her. 6. I pause to note that delivered to my chambers by email was a document from The Glen for Women written on Thursday June 9, 2022, advising that she has been assessed as suitable for the 12-week rehabilitation program at that facility. The bed will be available for her on Tuesday 5 July 2022 and that date only. There are other requirements that the appellant must satisfy to successfully enter the program and remain there. I shall include that document on the file as exhibit 1 in these proceedings. 7. The misconduct leading to these charges was serious. In the interests of those members of the community burdened with the horror of the bushfires so extensive in the areas where they occurred and subsequently the extensive floods which Australia suffered the Commonwealth Government provided a scheme whereby those in need might have modest relief without the added burden of complex bureaucracy inhibiting the efficient distribution of the funds set aside. This misconduct is often not easily detected and the loss suffered by conduct such as this is not easily recovered. The misconduct insults and disrespects those who have truly suffered from these events and who have sought only the relief to which they were entitled. THE ASSESSMENT OF SENTENCE 1. Subject to what might be advanced ultimately on behalf of the appellant I am not persuaded that the sentence of 24 months imprisonment specified by the Magistrate was too severe. Furthermore it could not be said that the custodial component was greater than ought to be, but whether this will hold depends upon the progress, if any, the appellant makes in the program. 2. Section 16A Crimes Act 1914 (Cth) mandates that the Court impose a sentence of a severity appropriate to all the circumstances of the offences, taking into account in addition to any other matters specified in s 16A(2) as are relevant and known to the Court. 3. In this case I have brought to account the nature and circumstances of the offences, that the offences form a part of a course of conduct consisting of a series of criminal acts of the same or similar character. I have considered her personal circumstances as known to the Court. I have considered the injury, loss and damage resulting from her misconduct. I have considered the degree to which she has shown contrition for the offence by at least submitting to the order for reparation made by the Magistrate. I have noted her plea of guilty in respect of the offence. I have noted the degree to which she has co-operated with law enforcement agencies in the investigation of the matters. The deterrent effects of any sentence upon her have been brought to account together with the deterrent effect that the sentence will have upon other persons. There is also the need to ensure adequate punishment. I have considered her character, antecedents and age and her means and physical and mental condition as revealed in the psychologist's report. I have considered her prospects of rehabilitation. They could not be said to be strong but with the support of her family reflected in the evidence given by her sister I could not say that they do not exist. I have brought to account the probable effect that this sentence will have upon her and particularly her children to whom she hopes to restore to her company. ORDERS 1. The proceedings are adjourned to allow the appellant to participate in The Glen for Women residential rehabilitation program conducted at Wyong Creek. The matter is to be returned for mention on 22 July 2022 to confirm the appellant's continued participation in the program and her compliance with bail conditions. The appellant is excused on the next occasion if represented by her lawyer upon confirmation that she remains a resident at the program. The appellant is granted bail commencing on 5 July 2022 with the following conditions: 1. Ms Mundy is to be released to custody to a staff member of Katungul Aboriginal Corporation on 5 July 2022 and taken directly by that staff member to The Glen for Women residential rehabilitation facility at Wyong Creek. 2. Ms Mundy is to reside only at The Glen for Women at 235 Yarramalong Road Wyong Creek from 5 July 2022. 3. Ms Mundy is to participate in The Glen for Women 12-week residential rehabilitation program and not leave or cause her discharge from The Glen for Women program during the 12-week program. 4. Ms Mundy is to comply with all reasonable directions of staff and with all conditions of The Glen for Women. 5. Ms Mundy is not to leave The Glen for Women unless in the company of The Glen for Women staff or an officer of New South Wales Corrective Services. 6. Ms Mundy is not to possess or consume any alcohol or illicit substances or prescription medication other than that which is prescribed for her and is to submit to alcohol and or drug testing by Australian Federal or New South Wales Police if requested to do so by a member of those police forces. 1. The orders were explained to the appellant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2022