R v Hayman [2003] NSWCCA 138

New South Wales Court of Criminal Appeal

CITATION : R v Hayman [2003] NSWCCA 138 HEARING DATE(S) : 5 May 2003 JUDGMENT DATE : 5 May 2003

JUDGMENT OF : Giles JA at 1; Bell J at 14; Carruthers AJ at 15 DECISION : 1. Grant leave to appeal; 2. Allow the appeal; 3. Set aside the sentences imposed on 25 October 2002; 4. On each count sentence the applicant to imprisonment for twelve months commencing on 25 October 2002 and expiring on 24 October 2003, the sentences to be served concurrently; 5. Direct the applicant be released on a recognisance release order forthwith upon giving security of self in the sum of $500 without sureties.

CATCHWORDS : Sentence appeal - social security fraud - no question of principle. ND PARTIES : R v Phiona Anne Hayman FILE NUMBER(S) : CCA 60049/03 COUNSEL : A J Bellanto QC & A Goldsworthy - Applicant M Allnutt - Crown SOLICITORS : Aitken McLachlan Thorpe - Applicant Commonwealth Director of Public Prosecutions - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT DC 02/61/0087 FILE NUMBER(S) : LOWER COURT Woods ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60049/03

GILES JA BELL J CARRUTHERS AJ

Monday 5 May 2003 R v HAYMAN Judgment 1 GILES JA: This is an application for leave to appeal against sentence. 2 The applicant pleaded guilty to one count of defrauding the Commonwealth by obtaining payment of benefits to which she was not entitled, and to a second count of dishonestly causing loss to the Commonwealth by obtaining benefits from Centrelink to which she was not entitled. In each case the reason why she did not have the necessary entitlement was that she was living in a marriage-like relationship and the benefits were not payable to a person in such a relationship. The charge in the first count was of an offence against s 29D of the Crimes Act 1914 (Commonwealth) and the charge in the second count was of an offence against s 135.1(5) of the Criminal Code. 3 On 25 October 2002 Woods ADCJ sentenced the applicant to terms of imprisonment for 18 months in relation to each charge, the terms to be served concurrently. The sentences were to date from that day, 25 October 2002, and to expire on 24 April 2004, and his Honour directed that the applicant be released on recognisance after a period of 12 months and made a reparation order for repayment of $48,705.30, being the balance of the sum of a little over $50,000 which the applicant had obtained. 4 The circumstances of the offences need not be described in great detail. The applicant separated from her de facto husband in July 1997, and applied for and began to receive social security benefits. However, some months later she was reconciled with her partner and the de facto relationship, albeit turbulent at times, was resumed and continued. The applicant did not tell the appropriate authorities of the reconciliation and the fact that she was again in a marriage-like relationship, despite a number of occasions on which it was appropriate for her to have done so. Indeed, at least for a time the benefits were routed through her parents' home, from which it can be seen that there was a considerable element of intentional obtaining of the benefits notwithstanding lack of entitlement. 5 The applicant's explanation was, in brief, that the relationship was turbulent and the strains of looking after three young children were great; that she did not have enough money from her partner; and that the continuance of the benefits provided her with some comfort and security. To this was added, at a slightly later time, that she fell into gambling which she said gave her solace from the stresses of her life, and the money went to gambling. 6 When the applicant's wrongful conduct was discovered, she made full admissions and promptly pleaded guilty. She was otherwise without prior convictions and well respected within her community. 7 The judge referred to the line of authority to the effect that a custodial sentence should generally be imposed in cases of fraud upon the social security system, the general rule to be departed from only where there were special, or, as sometimes stated, exceptional circumstances. His Honour concluded his remarks on sentence by saying that he could not find special or exceptional circumstances and had to consider a term of imprisonment because of the seriousness of the offence, but his Honour said "However, I will make it at the lower end of the scale as she is a young mother with three children." 8 There was a problem in his Honour's exercise of the sentencing discretion. It seems to me that his Honour meant the lower end of the scale for terms of imprisonment. Under s 29D the maximum term of imprisonment was ten years. However, there was available as a foundation for the charges s 29B of the Crimes Act, under which the maximum sentence was two years. It does not seem to have been investigated at the sentencing hearing, but it may be asked why the applicant was charged under s 29D of the Crimes Act and s 135.1(5) of the Criminal Code with the availability of the lengthier maximum terms of imprisonment, rather than under s 29B. The Crown frankly admitted before us that there was not a ready explanation, and suggested that the explanation may have been to do with technicalities. Technicalities, however, should not govern sentencing, at least not in the way that the use of s 29D appears to have done. If his Honour had taken into account that the applicant could have been charged with the less serious offences, the sentences would probably not have been as great as they were. 9 There was another problem, frankly acknowledged by the Crown, in that it does not seem his Honour's attention was drawn to the need to allow for the absence of remissions, as then required under s 16G of the Crimes Act. The Crown went further and, with reference to a table, conceded that the period of imprisonment was at the upper extremity of periods of imprisonment imposed for similar offences having similar amounts of money wrongly obtained by way of social security benefits. 10 In all the circumstances, it seems to me inevitable that it should be concluded that the learned judge's sentencing discretion miscarried. 11 In this I have not referred to the explanation for the applicant offending, although some weight was given to it in the submissions put to us by counsel for the applicant. Counsel relied on fresh evidence, admitted without objection from the Crown, by way of psychological reports while acknowledging that the psychological reports really only drew together material which was before the sentencing judge and perhaps gave some added emphasis to it. That acknowledgement I think is a fair one. Where there was added emphasis was in the effect on the applicant and on her three young children of their separation through the imprisonment of the applicant. 12 Like the judge, I do not think I would regard the applicant's circumstances either of the commission of the offences or in relation to the three children as constituting special or exceptional circumstances whereby one would hold back from the imposition of a custodial sentence. However, it seems to me they can properly be taken into account in considering the length of the custodial sentence. 13 Guided by them and by the judge's intention of imposing a sentence at the lower end of the scale, it seems to me that the appropriate course to be taken in now re-sentencing is to vary the sentences imposed by the judge by imposing a head sentence of twelve months and with a recognisance release order taking effect on the expiry of six months. The applicant has spent a little over six months in gaol until now, and the effect will therefore be that she can be released on recognisance immediately. I would for abundant caution confirm the repayment order. The precise terms of the orders which I foreshadow I think are something on which I would like the assistance of counsel, but that is what I propose. 14 BELL J: I agree. 15 CARRUTHERS AJ: I also agree.