New South Wales Court of Criminal Appeal CITATION : Regina v Howe @ McGovern [2000] NSWCCA 405 FILE NUMBER(S) : CCA 60353/00 HEARING DATE(S) : 06/10/00 JUDGMENT DATE : 6 October 2000 PARTIES : Regina v Bernice Kaye Howe @ Bernice Kaye McGovern JUDGMENT OF : Wood CJ at CL at 35, 37; Dunford J at 36; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3006 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : (Crown): D G Staehli (Respondent): J S Manuell SOLICITORS : (Crown): Commonwealth DPP (Respondent): Legal Aid Commission of NSW CATCHWORDS : CRIMINAL LAW - Crown appeal - defrauding the Commonwealth - 3 counts - whether imposition of periodic detention manifestly inadequate - whether very special, exceptional or extraordinary circumstances existed. Crimes Act 1914 (Cth), ss 4AA, 16(G), 19, 29D LEGISLATION CITED : Justices Act, s 51A Periodic Detention of Prisoners Act Periodic Detention of Prisoners Amendment Act No 43 of 1998 R v Wegener [1999] NSWCCA 405 (8 December 1999) CASES CITED: Van Tang Luu (NSWCCA, unreported, 7 December 1984) Hamman (NSWCCA, unreported, 1 December 1998) Kelvin [2000] NSWCCA 190 (18 May 2000) DECISION : See paragraphs 31, 32 & 33 IN THE COURT OF CRIMINAL APPEAL 60353/00 WOOD CJ AT CL DUNFORD J CARRUTHERS AJ Friday 6 October 2000 REGINA v Bernice Kaye HOWE @ Bernice Kaye McGOVERN JUDGMENT 1 CARRUTHERS AJ: On 19 May 2000, the respondent Bernice Kaye Howe, who is also known as Bernice Kaye McGovern, was convicted and sentenced in the District Court by his Honour Judge Goldring following a plea of guilty to three counts of defrauding the Commonwealth, contrary to the provisions of section 29D of the Crimes Act (1914) (Cwth) ('the Act'). 2 The Crown appeals against the sentences imposed by his Honour. The respondent's legal representative was notified by letter dated 25 May 2000 that the Crown was considering an appeal. The notice of appeal was filed on 14 June 2000. 3 The respondent had, on 25 February 2000, pleaded guilty before a magistrate and been committed for sentence pursuant to section 51 A of the Justices Act. 4 The charges were each described to be of a "rolled up nature", which encompassed fraudulent activity spanning a little over 12 years, during which time the respondent obtained a Widow's Pension, and then a sole Parent Pension and Family Allowance/Family Payment from the Department of Social Security/Commonwealth Services Delivery Agency, to which the respondent was not entitled because she was, at all relevant times, in employment. 5 I note that the respondent was not in fact a "widow", but was divorced from her husband in about 1986, but nothing turns on this fact. 6 The maximum penalty in respect of each offence was ten years imprisonment or a fine of $100,000 or both, except for the period on and after 7 April 1997 (the last seven months of the period in charges 2 and 3) when the fine component was increased to $110,000 by the amendment of section 4 AA, the penalty unit section of the Act. In sentencing the respondent, his Honour said; "Ms Howe is convicted of the offences. I make a reparation order in the sum of $115,118.40. She is sentenced to imprisonment for twelve months, and I order that this sentence be served by way of periodic detention at the Parramatta Periodic Detention Centre. Such sentence is to commence no later than 2 June 2000 and the prisoner is to report at such centre." 7 His Honour used that formula to comply with the decision of this Court in Wegener [1999] NSWCCA 405 (8 December 1999), and consistently with the provisions of the Periodic Detention of Prisoners Act, as amended by the Periodic Detention of Prisoners Amendment Act No 43 of 1998. 8 Section 5 of the primary Act as amended provides, in effect that the sentence of imprisonment should be determined first, and only then should consideration be given to whether the person should serve the sentence in full-time imprisonment or by way of periodic detention. His Honour thus fixed the sentence of imprisonment to be one year, and then ordered that that sentence be served by way of periodic detention. 9 Although his Honour did not specify that each sentence was to be served concurrently - see section 19 of the Act - that was undoubtedly his intention. 10 The offences were committed over a period, firstly, in relation to the Widow's pension from 13 June 1985 to 28 May 1987. Secondly, in relation to the Widow's and Sole Parent Pension over the period 6 August 1987 to 3 August 1997, and thirdly, in relation to the Family Allowance and the Family Payment, over the period from 7 January 1993 to 20 November 1997. 11 At the date of sentence, the District Court was informed that $2,088.77 had been recovered by way of garnishee from the respondent's income, leaving the amount outstanding in respect of which the reparation order was made. 12 The fraud was facilitated by the fact that the respondent received the pension in her married name of Howe, whereas she was employed, at all relevant times, under her maiden name of McGovern. As the statement of facts tendered on sentence indicated, during the period that the respondent was in receipt of the Widow's Pension, she failed to notify the relevant authority that she was employed and in receipt of income. During the period that the respondent was in receipt of the Sole Parent Pension, she was required to lodge a Sole Parent Review Form every twelve weeks. On each form there was a question which asked, "Did you do any paid work during the last twelve weeks?", or a question to similar effect. In 43 of the 44 forms which had been retained by the Department, the respondent falsely answered "no" to that question. In one form she failed to answer the question. 13 It is not necessary, for present purposes, to refer to the long line of authority commencing with Van Tang Luu (an unreported decision of this Court of 7 December 1984) in which it has been held that general deterrence is a predominant consideration when sentencing for offences of defrauding the revenue, and that a sentence of full-time custody is required unless there are very special circumstances or, as is sometimes said, exceptional circumstances or extraordinary circumstances. 14 The cases were recently reviewed in the judgment of this Court in Hamman (unreported 1 December 1998) and, for an even more recent reference, see Kelvin [2000] NSWCCA 190 (18 May 2000). The line of authority is consistent, and it is clear, and it was obviously well known to the sentencing judge. 15 I shall briefly refer to certain of the evidence that was before his Honour. There was evidence that the only one of the respondent's four children still living with her at the date of sentence was her daughter, Natalie, who was then 17 years of age. There was evidence that, effectively, the respondent had received no financial support for herself or her children during the course of her marriage. When she was asked by her counsel "What did the money go on?", she replied, "Just the kids. Just general." She said during the course of her evidence, "I am sorry that I am here. I know (sic) have done wrong." 16 There was a Pre-Sentence Report dated 7 April 2000 before his Honour, to which brief reference should be made. As to the paragraph "Circumstances Surrounding Offence", the report reads; "The offender could not provide one clear reason why she claimed benefits whilst always in regular employment. She said she spent the money on general living costs and then private school fees for her youngest daughter. She resides in a modestly furnished home, and does not own a motor vehicle. She acknowledged she could have terminated her claim a few years ago under a then amnesty but decided not to do so." The report concludes; "It is considered the offender, other than for these offences, has her life in order, and supervision accordingly will be of limited value and is not recommended." 17 In sentencing the respondent, his Honour said, "This is not a case where the offences were committed because of greed." 18 That was a generous finding indeed. Further, his Honour said, "All the money that she received from Social Security was used to support her children." With the greatest respect to his Honour, a finding of fact in those terms was not available to him. His Honour concluded; "Ms Howe has shown some contrition, and she has pleaded guilty early in the proceedings. I have mentioned general deterrence, and I have mentioned the need to ensure that she is adequately punished. She is 50 years old. I suspect that she will not reoffend, and I have mentioned also the fact that she is the sole carer of a daughter who is at school. For those reasons, I will not impose a sentence of full-time custody." 19 The conclusion is irresistible, however, in the light of the authorities, that the evidence fell demonstrably short of establishing very special circumstances, extraordinary circumstances, or exceptional circumstances, to justify his Honour imposing less than a full-time custodial sentence. 20 We have had the benefit of a careful and forceful argument by Ms Manuell on behalf of the respondent to the contrary. I am not persuaded, however, that the submissions which she has put in any way undermine the conclusion which I have expressed. 21 Firstly, reliance was placed upon the written submissions on behalf of the prosecution at the sentencing proceedings. I do not think that those submissions were formulated in such a fashion as to justify the Crown being denied the right to contend here that there was a manifest error in the learned sentencing judge's approach to this case. Indeed, irrespective of what was expressed in those submissions, his Honour was perfectly well aware of the well established line of authority, to which I have made reference. 22 Indeed, in her written submissions to his Honour, counsel for the prosecution submitted that it was a case that required a "custodial sentence". I have no doubt that all concerned with the sentencing process would have considered such phrase to be a reference to a full-time custodial sentence. 23 Ms Manuell has also constructed an interesting argument based on the decision of this Court in Wegener, to which I have already made reference. However, I would merely say, in my view, that there is nothing in that decision which would derogate from a finding that the sentence which his Honour imposed of imprisonment for twelve months to be served by way of periodic detention, was manifestly inadequate, in light of the evidence before his Honour, and the well established line of authority to which I have made reference. 24 This Court must accordingly re-sentence. The respondent has the very considerable assistance in the re-sentencing process - as was acknowledged fairly by Mr Staehli on behalf of the Crown - by the material which is contained in the affidavit of the respondent sworn this day, and received by this Court for consideration, in the event that it became necessary for the Court to re-sentence the respondent. 25 I shall not refer to the full detail of that material. However, it does establish that the respondent has complied dutifully with the terms of the sentence imposed by Judge Goldring, and has thus now served one third of that sentence. Restitution to date is now something in excess of $3,000. 26 One is mindful of the early plea of guilty by the respondent and the principle of double jeopardy is an element of the re-sentencing process. One must also take in account that there is no provision for remissions in this State: see s 16G of the Act. 27 This appeal comes at a very sensitive time so far as the respondent's daughter is concerned, because she has just completed her trial examinations for the Higher School Certificate. Having concluded the Higher School Certificate, Natalie, hopes to study hospitality at a TAFE College. The affidavit indicates that the uncertainty of the outcome of this appeal has affected her studies, and one would have little difficulty in accepting that proposition. 28 The affidavit also indicates that the other children of the respondent would have difficulty providing a suitable environment for Natalie to continue her studies, if this Court were to impose a sentence of full-time custody upon the respondent. 29 The situation presently before this Court is that the respondent has, to my mind, at this stage, and in the light of this additional material, and the present state of affairs, scraped over the threshold to satisfy the requirement of very special, exceptional or extraordinary circumstances. 30 However, be that as it may - and taking into account the constraints to which I have already referred - there must be, in my view, an increase in the sentence which was imposed by his Honour. 31 I would propose, therefore, that the sentences imposed by his Honour be set aside, and in lieu thereof this Court sentence the respondent to imprisonment for two years. I would propose that that sentence be served by way of periodic detention, to commence from 2 June 2000. 32 In view of the evidence before this Court, and before the sentencing judge - and I particularly make reference here to that which is contained within the Pre-Sentence Report to which I have already made reference - supervision of the respondent, when she completes her sentence, would not be necessary. Accordingly, I would propose that a recognizance release order is not appropriate; the reason being that supervision of the respondent at the conclusion of the service of her sentence would not be necessary. 33 The reparation order should be confirmed. 34 They are the orders which I would propose. 35 WOOD CJ AT CL: I agree. 36 DUNFORD J: I also agree. 37 WOOD CJ AT CL: The orders will be accordingly as proposed by Carruthers AJ. ********** 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.