REGINA v MOLESWORTH [1999] NSWCCA 43

New South Wales Court of Criminal Appeal CITATION : REGINA v MOLESWORTH [1999] NSWCCA 43 FILE NUMBER(S) : CCA 60751/98 HEARING DATE(S) : 12 March 1999 JUDGMENT DATE : 12 March 1999

PARTIES : The Director of Public Prosecutions - Crown Morna Molesworth - Appellant JUDGMENT OF : Spigelman CJ at 1; Abadee J at 21; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0738 LOWER COURT JUDICIAL OFFICER : Judge Luland

COUNSEL : Mr W Roser - Crown Mr R Bonnici - Appellant SOLICITORS : S E O'Connor - DPP Wesley Community Legal Centre CATCHWORDS : Sentencing; Social security; Fraud; Significance of gambling addiction Commonwealth Crimes Act ACTS CITED : Correctional Centres Act 1952 R v Jennifer Rose Purdon (unreported CASES CITED: NSWCCA 27 March 1997) R v Petrovic (unreported 1998 VSCA 95) R v Sopher (1993) 70 A Crim R 570 DECISION : Leave is granted but appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60751/98 SPIGELMAN CJ ABADEE J ADAMS J

FRIDAY 12 MARCH 1999

REGINA v MORNA MOLESWORTH

JUDGMENT

1 SPIGELMAN CJ: Adams J will give the first judgment. 2 ADAMS J: The appellant was sentenced on 6 November 1998 in the District Court for a number of offences brought under s 29B of the Commonwealth Crimes Act. Each offence carries a maximum penalty of two years imprisonment. However, as his Honour rightly mentioned, it was appropriate to consider the totality of the criminality involved. In the result, his Honour sentenced the appellant to eighteen months imprisonment dating from 6 November 1998 and ordered pursuant to s 20(1)(b) of the Commonwealth Crimes Act that she be released after serving twelve months of that sentence upon her entering into a recognizance to be of good behaviour from the time of her release. There was also an order for reparation in the amount of $73,327.32. It is self-evident in the circumstances of this case that there is no possibility that those funds in whole or even substantially can be repaid. 3 Between 13 January 1987 and 2 July 1991 the appellant was employed as a clerk with Fairfax Community Newspapers. While she was so employed and in receipt of a widow's pension she claimed a total sum of $23,556.90 without disclosing that she was so employed. She was otherwise not entitled to that payment. Those facts cover the first five charges to which she pleaded guilty. 4 The sixth and seventh charges, as his Honour said, and rightly so, were of even greater significance than those of the first five counts. She lodged a claim on 15 February 1993 in a false name for the purpose of obtaining an allowance and at that time she used this false identity, as I have mentioned, she was in receipt of another benefit and she was, accordingly, not entitled to the sum obtained by using the false identity. The total claim in that respect was $50,457. The total fraud, therefore, amounted to the large sum of $74,024. 5 When interviewed by the police about the matter the appellant's explanation was that she was unable to live on one pension because she was in effect a gambling addict. The criminality, as his Honour determined, "was to acquire extra money to further her gambling addiction" and hence his Honour in distinguishing between what is acquired for need and what is acquired for greed considered that "It really must be seen more as for the purpose of greed". 6 His Honour gave weight to the past circumstances of the appellant. In the pre-sentence report which was tendered in the proceedings, the following circumstances were set out and it was not sought to be suggested by the Crown either on sentence or in this Court that the facts were otherwise than as stated in that report: Ms Molesworth was twenty years old when she married. She described this relationship as extremely violent, stating that her husband constantly beat, raped and verbally abused her. They have three children all of whom are now married with their own children. Ms Molesworth said that although she waited until the children were old enough to take care of themselves before she left her husband, it seems that the divorce may still have affected them negatively because apart from her eldest son's wife none of them speak to her. 7 His Honour described the appellant's life at the time of sentencing in this way: She presently lives a rather sad and lonely life in a boarding house at Dulwich Hill. Her only support system is through her local church and the counselling support she receives. 8 I should point out that that support has been extremely significant in her life and has transformed the circumstances in which she was living at the time of these offences. 9 His Honour said in his judgment that the circumstances to which I have adverted: ...prevailed to engender in her the need to fulfil her lonely life by gambling and that is said to have commenced in and around the time that she commenced this criminality. 10 His Honour, as I read the judgment on sentence, accepted that this might be an explanation for the offences which she committed but pointed out rightly, in my view, that there is ample authority that committing offences due to a gambling addiction cannot mitigate to any significant degree the criminality of a particular case "even though it may explain the situation". 11 His Honour regarded the effort to overcome what he described as "the root problem" was something that could be taken into account in respect of her future and I understand that his Honour was here dealing with the aspect of rehabilitation which, in this appellant's case, was undoubtedly both substantial in a personal sense but significant in terms, also of the public interest. His Honour, however, summed up the position that he thought appropriate in this language, "but as to the criminality the gambling addiction cannot have marked significance upon sentence". 12 It is a matter of concern to me that his Honour gave relatively slight significance to the matters inciting to the ordinary mind real feelings of sympathy and even understanding that arose from her personal and social circumstances at the time of these offences. I am of the view that his Honour, therefore, discounted them too much in arriving at his assessment of the objective circumstances of the crime. To my mind, the root problem, to use his Honour's language, was material in two senses: it explained the crime to some degree and it also was a relevant subjective circumstance operating to mitigate the seriousness of the sentence otherwise appropriate having regard to the objective circumstances. To over-simplify it somewhat, but to make the point, in my view, his Honour should have regarded the gambling addiction in this case as being rather a symptom of an underlying problem than the cause of her criminality. The sentence decisions of this Court which I do not think it is necessary to advert to for present purposes, which point out that gambling addiction does not provide any substantial mitigating circumstance, do not require a discounting of the matters which might have led to that condition. 13 I read his Honour's judgment, however, as being based upon the misapprehension that because there was an intervening gambling addiction, that matter of the underlying causes should be discounted or discounted more than they deserved to be when considering the objective circumstances of the offence. 14 I am also concerned with the issue of the age and the health of the appellant. His Honour said this: I have taken into account the matters that I must take into account under s 16A of the Commonwealth Crimes Act, particularly the age of the prisoner and that being of that age the gaol sentence will, perhaps, be more arduous for her than a younger person. However, notwithstanding her age there is no evidence before me that she suffers any gross or serious illness and was, in fact, described as being quite a mobile person. 15 So far as they go, if I may say so, with unfeigned respect for the learned sentencing Judge, those propositions are correct, but the difficulty is that they implicitly suggest that the appellant's health was not such as to cause concern as to her ability to undertake a gaol sentence of the term that his Honour had in mind. I point out that there is no evidence before us that suggests that the appellant has had any difficulty with her health whilst in prison. The Probation and Parole officer, whose report was tendered and which was not the subject of controversy, mentioned this aspect in this way: Although Ms Molesworth is suitable for periodic detention, it is a concern of this Service that the strain of such a sentence may affect her health in a negative manner considering her age. As would, as it seems to me, a fortiori, a term of full time imprisonment. 16 His Honour, in weighing up the relevant considerations, gave weight to the principle of general deterrence which was been repeatedly stated in the courts of this State and other States as being of fundamental importance in dealing with offenders committing crimes of the kind we are considering. It is unnecessary to recite those statements for present purposes. However, they are conveniently summarised in the judgment of Hunt CJ at CL with whom the other members of the Court agreed, in R v Jennifer Rose Purdon (unreported, NSWCCA 27 March 1997). Hunt CJ at CL said: The rationale stated for the rule that a custodial sentence is to be imposed for Social Security fraud, except in very special circumstances, is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. Both types of fraud are widespread. They are equally difficult to detect. If the fraud is based upon a perceived need a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed the custodial sentence will be longer. 17 The brief description, to which I have referred, of the appellant's life while she was married and took care of her children, masks a real tragedy whose effect ought not to be discounted by its brevity. Her lonely life thereafter without the affection and support of her family, including the grandchildren with whom she hoped no doubt she would be able to live in a relationship which she was unable to have with her own children, must be taken into account in all humanity when, at its sunset, she comes to be considered for these offences. 18 Serious as they are, the accumulation drip by drip of small sums turns into a frightening total. I share the learned sentencing judge's view that this was a case for full time custodial penalty, but in my respectful opinion, his Honour's judgment did not adequately reflect the circumstances of the appellant before and whilst these offences were committed and which to some degree explain why they occurred. 19 Accordingly, I would propose to grant leave to appeal and quash the sentence passed below substituting therefor a sentence of eighteen months imprisonment to date from 6 November 1998 pursuant to s 20(1)(b) of the Commonwealth Crimes Act and order that the prisoner be released after serving six months of that sentence upon her entering into a recognizance without cash or securities to be of good behaviour from the time of her release. 20 SPIGELMAN CJ: Abadee J will deliver the next judgment. 21 ABADEE J: In respect of this matter, I regret that I am unable to agree with the conclusion expressed by Adams J. It is not necessary for me to repeat the facts and circumstances as they have been adequately dealt with by Adams J and, in my view, adequately dealt with by the sentencing judge in his sentencing reasons. No error in fact or in law is, in my view, revealed in his Honour's sentencing reasons. Further, there is nothing to suggest to me that his Honour's sentencing discretion miscarried. I am unable to find or conclude that his Honour did not give full and proper weight to considerations of humanity and to the age of the applicant. His Honour's judgment, in my view, reflected the circumstances of the applicant's life both before and during the commission of the offences and there is nothing in my mind to suggest that these matters were ignored or otherwise improperly discounted. 22 There are seven counts that we are concerned with. The matter of loneliness has been raised in the argument. May I observe that in response to the loneliness argument that the first five counts relate to a period of time when the applicant was working in regular paid employment and receiving a regular income from that employment. The matter of employment is one which tends to neutralise any suggestion of loneliness at least during that relevant period. 23 The offences were discovered in the instant case by computer matching in March 1998. There is nothing to suggest that had this computer matching not resulted in the discovery of these offences that the offences would not have continued thereafter. 24 The applicant did not seek any counselling or assistance in respect of her gambling problem until 5 May 1998 despite the fact that over a period of almost eleven years there was, according to her claim, present a significant gambling problem. The matter of gambling, or pathological gambling addiction, of the type referred to was addressed by the Victorian Court of Appeal in the recent case of R V Petrovic (unreported 1998 VSCA 95). In that case the applicant was charged with a number of counts, including counts of deception, burglary and theft. The evidence was adduced that the applicant was a pathological gambler. In Petrovic, Charles JA, with whom the other members of the Court agreed said (at 8): The fact that an offender was motivated to the commission of the crimes in question by an addiction to gambling will, no doubt, usually be a relevant, and may also be an important, consideration for a judge sentencing the offender for these crimes. But as Tadgell JA said in R v Cavallin (CA Vic 24 July 1996, unreported at 10: It is . . . important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment. It is considerations such as these which have led this court to say more than once that it will be a rear case indeed where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction. 25 I do not believe that the instant case is such a rare case of the type that is envisaged by the authority of Petrovic. 26 The next matter that needs to be considered, in my view, is the matter of public deterrence. The applicant is a lady now aged sixty-eight years. It is a sorry state of affairs that she has ended up in the prison system at her age. However, it is to be remembered that the offences include offences relating to the unlawful obtaining of the aged pension and the fact that a person is in fact in the qualifying age group should not ordinarily, in my view, be regarded as a special circumstance or as a circumstance denying the element of general deterrence. 27 On the question of age, it is appropriate for me to refer to the decision of this Court of R v Sopher (1993) 70 A Crim R at 570 where the court acknowledged that health and age are relevant to the range of any sentence. It then considered other principles relating to both of these matters. The fact that the applicant is presently aged sixty-eight years of age is not, in my view, one that would prevent an otherwise appropriate sentence being imposed for the subject offences. 28 Adams J in his sentencing reasons has referred to the fact that there is no evidence that the applicant suffers from any or was suffering at the time of sentencing from any grave or serious illness but even if the situation be other wise I would not regard that factor as significant: see R v Sopher and see also the provisions of s 28 of the Correctional Centres Act, 1952. 29 In my view, no error having been disclosed and, further, absent anything to suggest that the sentencing discretion has miscarried, leave to appeal should be granted but the appeal, in my view, should not be allowed. For those reasons I would not agree with the order proposed by Adams J. 30 SPIGELMAN CJ: I agree with Abadee J and with his Honour's reasoning. This Court sits as a court of error from the sentencing discretion exercised by trial judges. In accordance with the rule of law, binding on this Court, it is not for the Court to substitute its own view of the proper sentence, unless it is first satisfied that his Honour's exercise of discretion has in some way miscarried. 31 I agree with the reasons given by Abadee J and his conclusion that this appeal should be disallowed. 32 Specifically, with respect to the matter referred to by Adams J, as to the failure of his Honour to identify a link between the circumstances that caused the gambling addiction and his Honour's statement of the reason for applying the authorities which indicate that a gambling addiction does not mitigate to any significant degree, in my view, his Honour's reasoning is not open to an analysis which would lead one to such a conclusion. His Honour stated in some detail the nature of the background of the personal circumstances of the applicant prior to the emergence of her gambling addiction and there is nothing, in my view, to say that his Honour failed to take that into account as part of the objective circumstances of the case and also as part of the subjective circumstances of the appellant. 33 I am of the opinion that leave should be granted but the appeal should be dismissed. 34 The order of the Court is that leave is granted but that the appeal is dismissed. ***********