Regina v Robinson [2000] NSWCCA 556

New South Wales Court of Criminal Appeal

CITATION : Regina v Robinson [2000] NSWCCA 556 FILE NUMBER(S) : CCA 60501/99 HEARING DATE(S) : 25/02/00 JUDGMENT DATE : 25 February 2000

PARTIES : Regina v Melissa Anne Robinson JUDGMENT OF : Hidden J at 33; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0090 LOWER COURT JUDICIAL Knight DCJ OFFICER :

C B Craigie (Appellant) COUNSEL : P Hock (Crown/Respondent) Legal Aid Commission of NSW (Appellant) SOLICITORS : S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal - obtain benefit by deception s 89 - subjective circumstances - applicant sentenced to full-term custodial sentence - mother of three young children - consideration by the Court of administrative and legislative facilities available to mitigate hardship. LEGISLATION CITED : Crimes Act, 1900. CASES CITED: Regina v Edwards (1996) 98 ACrimR 510; Regina v Wirth (1976) 14 SASR 291. DECISION : Application for leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA60501/99

HIDDEN J CARRUTHERS AJ Friday, 25 February 2000 REGINA v Melissa ROBINSON JUDGMENT 1 CARRUTHERS AJ: Melissa Robinson seeks leave to appeal against sentences imposed on her by Knight DCJ at the Dubbo District Court on 25 August 1999. The applicant had earlier pleaded guilty on 89 counts under s178BA of the Crimes Act, 1900, of obtain benefit by deception. That section imposes a maximum penalty of imprisonment for five years. 2 In relation to the first 88 offences, which fall within a pattern of similar offences, his Honour sentenced the applicant, in each case, to a minimum term of 18 months commencing on 25 August 1999 and expiring on 24 February 2000, together with an additional term of two and a half years to commence on 25 February 2001 and to expire on 24 August 2002. 3 His Honour ordered that the applicant be eligible for release to parole on 24 February 2001, and recommended to the Parole Board that such parole be subject to supervision and further supervision conditions set out in Form 2 of Schedule 1 of the Sentencing General Regulation 1996. 4 In relation to the 89th count which can be categorised as a discrete matter, His Honour nevertheless imposed the same sentence as he had in relation to the earlier matters. Thus those sentences were to be served concurrently. His Honour found special circumstances consisting of the hardship which would be caused to the three young children of the applicant by reason of her imprisonment and her need for a lengthy supervised period of rehabilitation. 5 It is helpful to consider the subject offences in the light of the applicant's history. The applicant was born at St Leonards, Sydney, on 1 June 1969. When she was aged five years, her family moved to Wellington in New South Wales. She attended the Wellington High School and graduated in 1986 with the Higher School Certificate. Due to a shortage of work in Wellington the applicant moved to Sydney on her own where she obtained work as a clerk with the State Bank in 1987. 6 However, between 29 June 1988 and 2 August 1989 the applicant committed eleven counts of larceny as a clerk from the Bank involving an aggregate sum in the order of $23,000. 7 Having been duly charged on 19 February 1990 with those offences, the applicant came before the Sydney District Court on 2 August 1990. On that occasion she received the benefit of a four year good behaviour bond, a condition of which was the repayment of $24,000 in instalments to the State Bank. A fine of $2,000 was also imposed. 8 On 28 February 1992 the applicant came before the Sydney District Court, presided over on this occasion by Shadbolt DCJ, for a breach of the recognisance. On this occasion the applicant received the benefit of a further good behaviour bond of four years. 9 On 16 March 1993, a breach report was submitted. Ultimately no action was taken on that breach, the matter being brought to finality on 24 September 1994 at the Dubbo District Court. That recognisance expired on 27 February 1996. 10 The applicant married in November 1994 and at some stage resumed living with her husband in the Wellington area. In that year she obtained employment as a casual clerk with a company called Message Pty Limited which traded as Dubbo Shutters and Screens. Her duties included book-keeping, collection of moneys owed, maintaining company records, preparing wages and group certificates, and banking. As part of her employment the applicant had access to the company's cheque book. The applicant would prepare accounts for payment and a director of the company would sign the cheques. 11 The subject 88 offences were committed between 6 January 1995 and 13 July 1996. Effectively what the applicant did in many cases was to complete cheques by making them payable to cash and then she appropriated the money to her own use when the cheque was presented. Unfortunately this dishonesty was simplified by the fact that she was provided at times by her employer with signed blank cheques. In total the sum of $85,131 was stolen from the applicant's employer. 12 His Honour described the circumstances giving rise to the commission of the 89 charge as follows: "In February 1996 the company by which she was employed was approached by a person interested in purchasing the business and the applicant was concerned to endeavour to hide her defalcations. Accordingly she approached Westpac Bank and applied for a personal loan in the sum of $20,000. In order to secure that loan the applicant provided information by way of documents and otherwise to the bank. The contents of those documents were false. The falsity included statements as the applicant's wage, the purpose of the loan, her marital status and her residential address. In reliance upon that deception Westpac advanced the loan to the applicant." 13 The applicant was arrested on 18 December 1986 and in an extensive record of interview substantially admitted the criminal conduct which brought her before the District Court. 14 As to the subjective circumstances, it is necessary to note that the applicant has three children born respectively on 2 July 1995, which was during the commission of the subject offences, 28 September 1997 and 16 April 1999. The two younger children were accordingly born after the applicant was charged with the subject offences. 15 In evidence before His Honour the applicant was asked how it was, bearing in mind her earlier trouble with the law, that the subject offences came to be committed. She said: "We had a lot of mounting debts had a baby on the way, we had nothing for it at that stage. At one stage my husband had a loan with Westpac that he hadn't repaid and one day the sheriff came knocking on the door with a writ, so that was repaid and then I also had a problem with poker machines and a vast lot of money went into that." 16 As to her gambling addiction she elaborated: "The money that was spent on gambling went into poker machines and I'd stop at the RSL Club here in Dubbo or in Wellington and sometimes put you know., daily, $300-400 through the machines." 17 One could add, parenthetically, the mind boggles that this young woman was putting so much money daily through poker machines in the district in which she worked and lived and yet, apparently, the matter was not brought to the attention of her employer. 18 In any event, after having been charged with the subject offences, the applicant, her husband and children moved to Wandering, a small town in Western Australia not far from Perth. Apparently there are no licensed poker machines in Western Australia. 19 With regard to living in Wandering the applicant said: "It is a place where I just spend all day with my children and friends so I have no temptation of poker machines, anything like that." 20 In evidence the applicant stated if she were to receive a custodial sentence her mother-in-law would look after the children in Western Australia. Further to what I shall say shortly, that is what has happened since the applicant commenced to serve the subject sentences. 21 Bearing in mind the applicant's prior criminal record and the seriousness of the subject offences, a major number of which were committed whilst the applicant was still on a recognisance, the sentencing Judge was, notwithstanding the subjective circumstances, in my respectful view required to impose a full-time custodial sentence. 22 The major consideration in the present application is, however, whether sufficient weight was given to the hardship imposed upon the applicant's immediate family, particularly the children, by the imposition of the full-time custodial sentence, particularly bearing in mind that it will be necessary, to maintain their father's employment, for the family to remain in Western Australia whilst the applicant serves her sentence. That comment is again subject to something that I will say shortly. 23 It is now well established as a sentencing principle that hardship to third parties ought only be taken into account as a sentencing factor where special circumstances are highly exceptional, where it would be in effect, inhuman to refuse to do so. Reference may be made to the relatively recent decision of this Court in Regina v Edwards. (1996) 98 ACrimR 510 and the cases there cited. 24 That phrase "where the circumstances are highly exceptional, where it would be in effect inhuman to refuse to do so" is taken from the often quoted judgment of Wells J in Regina v Wirth. (1976) SASR 291 at 295-296. 25 To understand how demanding this test is, Wells J gave an example. His Honour said: "For example, if it were demonstrated to the satisfaction of the Court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go." 26 This is a particularly tragic case, tragic for the applicant and tragic for her family. However, this is a Court of error so that it would be acting contrary to the law if this Court were to interfere with the sentences imposed by His Honour unless some error in the sentencing process was identified. 27 It is appropriate in my view when assessing whether the sentences were within the discretionary range available to His Honour, both as to the overall sentence and the allocation of the sentence between minimum term and additional term, to bear in mind that there is an administrative and legislative regime within this country designed to mitigate the effects upon the mother and young child or children where a mother is required to serve a custodial sentence. 28 In this particular case, bearing in mind that the applicant's family are themselves in Western Australia and the applicant is presently serving her sentence in New South Wales, there is the option of her applying for a transfer under the Prisoners (Interstate Transfer) Act. There is also the option of her making an application for release under s29 of the Correctional Centres Act, 1952. I am not to be taken by referring to that section intending to suggest what approach those whom the law requires to consider an application under that Act should take. 29 Further, there is the full-time residence program which enables children to live with their mothers in a Correctional Centre. We have been helpfully provided in another case by Miss Hock, who appears as counsel for the Crown in this matter and a further matter, with a copy of a pamphlet entitled "Mothers And Children Information" dealing with full-time residence programs. 30 Mr Craigie, who represents the applicant before this Court, and who has put on her behalf everything that could be put on her behalf, has tendered a report from the New South Wales Department Of Corrective Services dated 14 February 2000 under the hand of Chris Sharp. That report was tendered on the basis that it may assist the Court if error had been disclosed in the sentencing process and it were necessary for this Court to re-sentence. To my mind that situation has not developed, but I do take the liberty of referring to it because it brings up to date the position of the youngest child of the applicant. It states, inter alia: