New South Wales Court of Criminal Appeal CITATION : Regina v Aller [2004] NSWCCA 378 HEARING DATE(S) : 21/10/04 JUDGMENT DATE : 5 November 2004 JUDGMENT OF : Hulme J at 1; Buddin J at 3; M W Campbell AJ at 4 DECISION : Appeal dismissed CATCHWORDS : Sentence - Crown Appeal - Defrauding the Commonwealth - Impact of imprisonment of mother on invalid son - Whether suspended sentence justified - Importance of general deterrence. LEGISLATION CITED : Crimes Act 1914 (Cth) ss16A(2)(p), 20(1)(b), 29D Criminal Code Act 1995 (Cth) s134.2.(1) R V Purdon (unrep CCA 27 March 1997 R v Luu (unrep CCA 7 December 1984) R V Medina (unrep CCA 29 May 1990) CASES CITED : R v Sopher (1993) 70A Crim R 57 R v Hinton (2002) 134 A Crim R 286 R v Keir [2004] NSWCCA 106 19 May 2004 R v Togias (2001) 127 A Crim R 23 PARTIES : Regina Noeline Marie ALLER FILE NUMBER(S) : CCA 04/1830 COUNSEL : Mr G J Bellew - Crown Mr R A Hulme SC - Respondent SOLICITORS : Ms S Calomeris - DPP Ms J King - Legal Aid Commission of NSW LOWER COURT District Court JURISDICTION : LOWER COURT 04/11/0323 FILE NUMBER(S) : LOWER COURT Charteris DCJ JUDICIAL OFFICER : - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2004/1830 HULME J BUDDIN J M W CAMPBELL AJ Friday 5 November 2004 REGINA v Noeline Marie ALLER JUDGMENT 1 HULME J: Subject to one matter, I agree with the reasons for judgment of Campbell AJ. 2 Without further consideration which, in the circumstances of this case, it is unnecessary to give, I would not wish to be taken as agreeing with the remarks of Howie J in R v Hinton (2002) 124 A Crim R 286 which Campbell AJ has cited. The characterisation of circumstances as exceptional is not a finding of primary fact. An appellate court is in just a good a position as a primary judge in deciding whether circumstances found by that judge fall within the description "exceptional". No doubt an appellate court will give weight to the primary judge's view but I very much doubt whether the appellate court is as constrained as Howie J suggests. 3 BUDDIN J: I agree with Campbell AJ. 4 CAMPBELL AJ: The Crown appealed, on the ground of manifest inadequacy, against sentences imposed upon the respondent (Noeline Marie Aller) by Judge Charteris of the District Court on 4 June 2004 when she appeared for sentences on two counts which were as follows: 1. One count under s 29D of the Crimes Act 1914 (Cth) of defraud the Commonwealth between about 5 July 1985 and 22 May 2001 by obtaining Social Security payments in the name of Nola Benson; 2. One count under s 134.2(1) of the Criminal Code Act 1995 (Cth) of obtain financial advantage by deception between 5 June 2001 and 13 March 2003 by dishonestly obtaining Social Security payments from the Commonwealth in the name of Nola Benson; to which charges she had pleaded guilty and been convicted. 5 For each offence she was sentenced to two years imprisonment with an order that she be released forthwith upon entering into a recognizance release order pursuant to sub-paragraph 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1000.00 conditioned that she be of good behaviour for a period of 5 years, both sentences to commence on 4 June 2004 and to be served concurrently. 6 On the day of hearing the Court dismissed the appeal and indicated that reasons would be delivered later. I accordingly set out my reasons for concurring in that decision. 7 It is clear beyond any doubt that, in the case of a fraud upon the social security system, a custodial sentence is to be imposed unless there exist very special circumstances justifying some lesser order. (R v Purdon (unreported, CCA, 27 March 1997 per Hunt CJ at 4,5). 8 In R v Luu (unreported, CCA, 7 December 1984) Street CJ, with whom Lusher and Roden JJ agreed, said: "The courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardship to persons whose need for benefits is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hand of the courts." 9 That approach has been maintained through a long line of cases of which examples are R v Medina (unreported, CCA, 28 May 1990); R v Sopher (1993) 70A Crim R 57) and R v Hinton ((2002) 134 A Crim R 286). 10 In the recent case of R v Keir ([2004] NSWCCA 106, 19 May 2004) the Court (Dunford, Greg James and Buddin JJ) emphasised that in sentencing for such offences, general deterrence is an extremely important consideration. 11 The Crown did accept that, as those and other cases make clear, there can be very exceptional cases which justify the imposition of a penalty less than imprisonment. 12 The Crown also accepted that the sentencing judge had found as a fact that this case satisfied the requirement of being such an exceptional case. 13 It followed, as was also conceded, that to succeed on the appeal the Crown had to establish that that finding was not open on the evidence in the case. In respect of a similar situation in R v Hinton Howie J said at 293: "Whether exceptional circumstances exist is a finding of fact and this Court is strictly curtailed in displacing a finding of fact by a sentencing judge with a finding of its own, especially where error which might infect that finding cannot be shown. Where there is no patent error the court can only intervene where it is satisfied that there is no basis upon which the finding could be made." 14 It is convenient to note that there were two counts because the relevant legislation changed. The maximum penalty under the first count was five years imprisonment and became ten years in 1996. The maximum penalty under the second count was ten years. It was not submitted that the sentencing judge was in error in making the terms he imposed concurrent. 15 The facts are set out in short form in the Australian Police Facts Sheet which reads, in part, as follows: "Noeline Marie ALLER ("the offender"), born 2 April 1927, received various benefits from the Department of Social Security (pre 30 June 1997) and later the Commonwealth Services Delivery Agency (post 1 July 1997) in that name whilst also receiving benefits to which she was not entitled, in the name of Nola BENSON, born 22 April 1928. The following social security payments were paid to the offender in the name Noeline ALLER: · Widows Pension – a claim was made on 16 February 1967 and Widows Pension was paid from 15 February 1967 to 2 April 1987. · Age Pension – automatic transfer from Widows Pension on 2 April 1987 and Age Pension was paid from 2 April 1987 to the present. - - - - - - Centrelink records indicate that the following social security payments were also paid in the name Nola BENSON: · Unemployment Benefit – a claim was accepted and the claimant paid from 26 September 1983 to 13 November 1983. · Sickness Benefit – a claim was accepted for this benefit and the claimant was automatically transferred from Unemployment Benefit from 14 November 1983 to 11 March 1988. · Special Benefit – a claim was accepted and payments for this benefit were made, following an automatic transfer on 12 March 1988 until 5 April 1995. · Age Pension – following automatic transfer from Special Benefit on 4 April 1995, Age Pension was paid from that date until 11 March 2003, when it was cancelled following the detection of the present offences. - - - - - - In summary, social security payments were paid to the offender in the name of Noeline ALLER from 15 February 1967 [and continuing] and social security payments were paid to the offender in the name of Nola BENSON between 26 September 1983 and 11 March 2003. A number of the initial claim forms can not be located among Centrelink records. On 12 February 1991, whilst Special Benefit was being paid to the offender in the name of Nola Benson, she lodged a claim in that name for Invalid Pension. That claim was later rejected because the proof of identity was not satisfactory. However, at question 2 of that form the offender failed to indicate that she was known by the name of Noeline Aller, nor did she disclose, at question 6, that she had previously claimed social security benefits in that name. In support of that claim the offender presented the following identification evidence: · A Commonwealth Bank Passbook in the name of Nola Benson, held with the Surry Hills Branch of the bank, account number 50759. · A letter from Dr. S Goodman of 135 Redfern Street, Redfern, dated 12 February 1991, stating that he had know Nola Benson since 22 March 1985 and gave her date of birth as 22 April 1928. Further, a questionnaire completed by 'Margaret Johnson' of 12/153 Devonshire Street Surry Hills N.S.W. 2010 was returned to the Darlinghurst office of the Department of Social Security on 11 October 1991. The signatory of that letter, Ms Johnson, stated that she had know Nola Benson for approximately 10 years and also advised that she knew Nola Benson was 63 years of age [as the claimant, Benson, had notified her of that]. During the periods of the offences several letters were sent by the Department of Social Security / Centrelink to the offender. Those letters informed the offender of her obligations with respect to the benefits she was paid as well as the amount of her next fortnightly payment. - - - - - - Also on 7 March 2003, the offender participated in a taped record of interview at A.F.P. headquarters in Sydney. The following admissions were made by her in relation to the offences before the court: · She created the false identity of 'Nola Benson'. · She received benefits in the name of Nola Benson. · Letters sent to Benson at 12/153 Devonshire Street, Surry Hills were sent to her sister's premises at that address. · She knew that what she was doing was wrong. · She was not forced to do it by anyone. · She could not remember how it started as she had a stroke when she was 50. · She did so because she was a single mother with an invalid son and she needed to money. · She needed the money to help her. · She was not managing very well as she was not getting help from any other source. · She did not think she wasted the money. · She would receive close to $400 on a fortnightly basis in the name of Nola Benson. · She had a bank account at the Strawberry Hills Post Office. · The Commonwealth bank keycard in the name of Nola Benson, seized by the A.F.P. from her premises, was hers. It was the key card she used to access the funds. · She used it at Commonwealth Banks wherever she was. · She would use it at the South Sydney Junior Rugby League Club. · She used the funds to buy things for the house. · She did not use the funds for anything else. · She intended that the money be used for her son if anything ever happened to her. · She did not spend all the money on gambling. · She used the money to help her to manage. · She had an invalid son and wanted to give him the best. · Her sister, Mrs Margaret Johnson, was not involved in any way. Charges and overpayments Charge 1 – section 29D of the Crimes Act 1914 [Between about 5 July 1985 and 22 May 2001]. The overpayment in relation to this charge is $126,731.26. Charge 2 – section 134.2(1) of the Criminal Code 1995 [Between about 5 June 2001 and 13 March 2003]. The overpayment in relation to this charge is $20,175.30. The total overpayment in relation to both charges is $146,706.56. As at 13 May 2004, a total of $11,807.64 had been repaid by the offender by way of withholdings [at the rate of $66.10 per fortnight] from her current benefit. 16 The repayment referred to in the statement of facts included $10,000 the respondent had paid into her bank being part of the proceeds of an action she had brought for personal injury. 17 The respondent's account of how she came to embark upon the fraud was given in a record of interview as follows: "Q114. Yes. If you like, take me right through from the start to the present. A Well, I was a widow, I had a very sick child, I had no other help, I used to work part time and then when I couldn't get work during to my son's illness or other things, I can't even remember how I started this but it was mentioned to me and I can't remember how it started. I had a stroke when I was fifty, it's affected my memory scan a lot, I just can't remember how I started it but I was getting money from the benefit but it was no-one else assisted me in any way. This is all my own doing I needed the money to help me, I wasn't managing real well, I wasn't getting any other help from anybody, family or anything else. It's something I've done, it's something I can't, all excuses in the world is not going to make anything better. I needed the money, I don't think I've wasted it, I can't say anything more. 18 The sentencing judge accepted that the respondent's memory was affected to some extent by the stroke that she had suffered. 19 The statement of facts referred to the use of money for gambling. The sentencing judge examined that issue and found that "although the offender undertook some gambling it was only for the purpose of keeping herself occupied. She was motivated by the need to obtain money to support as she saw it her very seriously disabled son." 20 He later said: "I consider that she was genuine in the expressions of her remorse and I consider that although she spent some of the funds upon gambling that it was more in relation to her occupying herself. She said she was lonely and she used to go to the club. The cross-examiner sought to establish that this was an offence committed by motivation of greed and not of need. I am not satisfied of that approach. I consider having seen her give her evidence and be cross-examined and having considered the other material, that she was motivated almost exclusively by her perception of the need to adequately support herself and principally her chronically ill child." 21 Charteris DCJ considered in some detail in his judgment the subjective circumstances of the respondent and, more importantly for present purposes, the position of her 40 year old invalid son, Peter. 22 In respect of Peter, he considered the requirement under s 16A(2)(p) of the Crimes Act 1914 that he take into account "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants." 23 Charteris DCJ did not refer to the established principle that this subsection must be read as if preceded by the words "in an exceptional case". (See, R v Togias (2001 127 A Crim R 23 per Spigelman CJ at 25, 26; Grove J at 36; R v Hinton per Howie J at 293). However, it is clear that he considered this an exceptional case. 24 I should summarise shortly the situation of the respondent and her son as it appeared from the judgment. 25 The respondent is 77 years of age. She lives in a Housing Commission house with her 40 year old son who is an invalid. 26 The respondent was the second oldest of a family of six and raised in somewhat impoverished circumstances. She was married three times; twice to the same husband. The first marriage ended in divorce there having been domestic violence. The second marriage, which was also marred by violence due to alcohol abuse, ended when her husband committed suicide. She remarried her first husband who died of cancer after a relatively short time. 27 The Judge described her health as follows: "I have also received into evidence a report from the Royal Prince Alfred Hospital under the hand of Dr Jones. That records that the offender had been attending both the Royal Prince Alfred Hospital and the Rachel Foster Hospital over a number of years. She has been seen in different clinics including the rheumatology outpatient clinic, the pain management clinic and the orthopaedic outpatient clinic. She had a history of generalised osteoarthritis, she also has fibromyalgia. She had numerous treatments for her left hip and groin pain. In 1992 she underwent lumbar vertebrae decompression at levels 3 to 5 with a fusion of her lumbar spine. That surgery was undertaken due to her canal stenosis and left sciatica. She has also had a left hip lumbar para-vertebral block in 1997. She has been subjected to a regime of numerous medications. In July 2003 she complained of increasing pain which was described as continuous, it was in the left hip and radiated to her groin and down her thigh. It was described as burning in nature and woke her at night. Her recent admission to hospital was in October 2003 when she had bilateral L5 S1 facet joint injections in an attempt to relieve her pain. She had also had significant pain over both thumbs, she has a diagnosis of bilateral carpometacarpal joint arthritis. In June 2003 she had interpositional arthroplasty of the left carpometacarpal joint. She continues to be reviewed in the orthopaedic outpatient clinic. In February 2004 she was treated in respect of left shoulder pain and right foot and back pain. No surgery was at that stage contemplated, she continues under the care of the pain management clinic. Other history of medical complaints is recorded." 28 He also referred to a report from Dr Lewis, who had known the respondent for many years. He quoted a portion of the doctor's report as follows: "Noeline is currently suffering from a variety of illnesses which includes severe bronchial infections, severe back pains, severe gastric pains as well as depression and eye problems. She is currently taking massive amounts of medication just to get through the day. She is on high dose analgesics as well as antidepressants. She is having great difficulty walking, bending, and even sitting for any length of time". 29 Mr Taylor, a clinical psychologist, was of the view that the respondent suffered from severe depression. 30 The Judge noted that the respondent had two previous offences relating to shop lifting, one in 1979 and one in 1987. In both cases she was granted good behaviour bonds. 31 The respondent and her then husband adopted Peter when he was a baby. It would seem that Judge Charteris accepted that he was an abandoned child and already known to be sick. In any event that fact soon became apparent and the respondent has dealt with it ever since. An example being, at times, a requirement for dialysis up to four times a week. 32 Dr Lewis conveniently summarised the position as follows: "However the main concern for Noeline has been and always will be the health and welfare of her son Peter who is now aged in his thirties, and he has a veritable Pandora's box of problems, including renal failure requiring a kidney transplant and the taking of high doses of anti rejection drugs whose side effects have included mature onset diabetes and blindness in one eye, as well as severe difficult to control hypertension and he is very susceptible to mood swings. Without the support and devotion of his mother Peter would not be around today, this I can categorically state". 33 Dr Lewis also said in his report: "But I also have great fears for the well being of a very sick son Peter". 34 Dr Johnson, Peter's treating specialist, recorded treatment of Peter for many years due to chronic renal failure. Initially the treatment had been dialysis and subsequently there had been a kidney transplant in 2001. The doctor noted: "Peter has chronic rejection of the transplant with some impairment of renal function at the present stage. He also suffers from diabetes mellitus". 35 Dr Johnson had referred Peter to a psychiatrist for treatment of emotional problems and there was other evidence that Peter was intellectually slow. 36 A reference from a sister of the respondent, Patricia Doherty, was accepted by the Judge. It said, amongst other things, that the respondent had suffered a deterioration in her health but had continued to battle on due to her need to support the adopted child. 37 Another sister, Mrs Dechaineux, provided a reference and gave evidence. Judge Charteris found her a very impressive witness. She had said in her reference that she could not see how Peter could cope without the loving care of his mother. 38 The Judge regarded the fact that the respondent was the sole carer of a seriously disabled citizen, taken together with the other material before him, including her own age and ill health, to constitute such extraordinary circumstances as to justify the use of s 20(1)(b) of the Crimes Act 1914. 39 Subject to what follows I consider that it was open to him to so find. 40 In the Pre Sentence report of 17 May 2004 it was noted that the respondent was eligible for a periodic detention order and that she had been assessed as suitable for such an order. Further, she had signed the necessary undertaking to comply should such an order be made. 41 At the end of the sentencing hearing Judge Charteris reserved his decision on sentence. He, however, indicated that he was persuaded that there should not be full time custody and that the alternatives he was considering were periodic detention or a suspended sentence. 42 Prior to delivering his remarks on sentence the Judge offered Counsel an opportunity to make further submissions should they wish to do so. Reference was made as to the formalities of both periodic detention and a suspended sentence, or more correctly, a recognisance release order. 43 Judge Charteris did not in his remarks on sentence refer to the alternative of periodic detention. With respect it would have been better had he set out his reasons for not adopting that more severe option. However, it is clear that he did consider periodic detention. His otherwise detailed and careful reasons lead readily enough to an inference that he did not think that the elderly and ill respondent could have coped with constant changes in regime, thus depriving her son of the essential support which was the fundamental justification for the departure from the usual requirement of a full time custodial sentence for the offences of which the respondent had been convicted. 44 In the circumstances I remained unpersuaded that the sentences imposed by Charteris DCJ and the recognisance release order he made were not properly open to him. Accordingly, I concurred in the decision of the Court to dismiss the appeal. ********** Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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