Natasha Jade Thomas v Regina (Commonwealth) [2006] NSWCCA 313

New South Wales Court of Criminal Appeal

CITATION: Natasha Jade Thomas v Regina (Commonwealth) [2006] NSWCCA 313

HEARING DATE(S): 26 September 2006

JUDGMENT DATE: 6 October 2006

JUDGMENT OF: Sully J at 1; Barr J at 2; Adams J at 29

DECISION: Leave to appeal agranted. Appeal dismissed.

LEGISLATION CITED: Crimes Act, Commonwealth Criminal Appeal Act 1912

R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Hoadley Court of Criminal Appeal, 14 September 1990 unreported R v Duffy [1999] NSWCCA 321 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 CASES CITED: R v Edwards (1996) 90 A Crim R 510 R v Luu Court of Criminal Appeal, 7 December 1984 unreported R v Medina Court of Criminal Appeal, 28 May 1990 unreported R v Mears (1991) 53 A Crim R 141 R v Purdon Court of Criminal Appeal, 27 March 1997 unreported

PARTIES: Natasha Jade Thomas, Regina (Commonwealth)

FILE NUMBER(S): CCA 2006/1508

COUNSEL: R Burgess L Crowley

SOLICITORS: Legal Aid Commission of New South Wales Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0160

LOWER COURT JUDICIAL OFFICER: Black QC, DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/1508

SULLY J BARR J ADAMS J

6 OCTOBER 2006 NATASHA JADE THOMAS v REGINA (COMMONWEALTH) Judgment 1 SULLY J: I agree with Barr J. 2 BARR J: The applicant, Natasha Jade Thomas, seeks leave to appeal against sentences imposed in the District Court after she pleaded guilty to two counts of social security fraud. The applicant was born Andrea Nicole Robinson. During her adult life she changed her name twice, first, in an attempt to shake off the unwelcome attentions of her estranged and violent husband, to Angelic Sarah Thomas and later, for the same reason, to Natasha Jade Thomas. It was not suggested that she had changed her name with any criminal intent. On 25 September 1998 the applicant began to receive benefits of an allowance from the Commonwealth of Australia called Parenting Payment Single. She applied for and received those benefits in the name she was then using, Natasha Jade Thomas. She was entitled to receive those benefits. She continued to receive them throughout the events that followed. On 8 October 1998 she began receiving payments of Family Tax Benefits, also in the name Natasha Jade Thomas. She was entitled to receive them and did so throughout the events that followed. 3 On 7 June 2001, using the name Andrea Nicole Robinson, she lodged a further claim for Parenting Payment Single benefits. She did not disclose that she was already receiving an identical benefit in another name. Her claim was accepted and she was paid that benefit from that time until 18 May 2004. So she received $34,325.91 to which she was not entitled. 4 Also on 7 June 2001, using the name Andrea Robinson, she lodged a claim for Family Tax Benefit. She did not disclose that she was already receiving such a benefit in another name. Her claim was accepted and she was paid that benefit from that day until 1 July 2004. So she received $51,855.56 to which she was not entitled. 5 In her applications made on 7 June 2001 the applicant falsified her own birth date and the birth date of the man with whom she was then living. 6 The sentencing judge imposed on each count a sentence of imprisonment for eighteen months. The sentence on the first count commenced on 12 April 2006 and will expire on 11 October 2007. The sentence on the second count will commence on 11 April 2007 and will expire on 10 October 2008. His Honour ordered that the applicant be released after serving twelve months, upon her entering into a recognisance under the provisions of s20(1)(b) Crimes Act, Commonwealth, without surety and with a security of $500, to be of good behaviour for eighteen months. So the effective sentence was one of imprisonment for one year followed by a bond for one year and six months. 7 Eventually, those responsible for administering the funds from which the benefits were being paid to the applicant uncovered the fraud and sent officers to interview the applicant. On 10 June 2004 a formal interview was held and a record made. A copy was laid before the sentencing judge. During the interview the applicant said that she was then single and had the care of four of her children. She explained how she had fled to escape her husband, formed another relationship and found herself living in difficult circumstances without reliable accommodation or income. She had previously received from an agency of the Commonwealth payment of a lump sum called a Crisis Payment. She needed a further lump sum of money and knew that she was not entitled to another Crisis Payment, so she applied using another name. She received the proceeds, bought a car, moved into a caravan park and began paying rent. The payments kept coming. In August 2003 her partner died. Officers of the Department of Community Services came and took her children and she began a court fight to get them back. She continued to receive payments and used the money. She believed that she would be charged if found out and ordered to repay the money she had received. She did not know how to stop the payments without being found out. 8 A number of professional and other reports were put before his Honour. Ms Eivers, a clinical psychologist in the service of the North Coast Area Health Service, wrote a report about the applicant's two young children. Jasmine, then aged eight years, and her brother Kai, aged four years, had been in the care of foster patents. Jasmine had later come into the care of her maternal grandmother but in September 2005 both children had been formally returned to the care of the applicant under the supervision of the Department of Community Services. Ms Eivers thought that things were settling down and that the applicant had established a secure environment for the children. She thought that further separation from her mother "could undermine the psychological healing that Jasmine has undergone to this point". Ms Eivers knew about the charges the applicant was facing and obviously had in mind the possibility of a custodial sentence. 9 Another reporter was Ms Butler, a social worker also in the service of the North Coast Area Health Service. She reported that the applicant had changed her thinking and behaviour and had become a stronger person and a better mother. 10 A report to the Children's Court about Jasmine spoke well of the applicant's commitment to the children and preparedness to accept responsibility. The report recommended that the children remain with the applicant for a further six months under the supervision of the Department of Community Services. 11 On officer of the Probation and Parole Service prepared a report for the Court. The author noted that the applicant was thirty-eight years of age and had a history of heroin use, but claimed not to have taken that drug for ten years. For the last nine years she had been taking Methadone. Her children were aged three months, four years, eight years, fifteen years, seventeen years and twenty years. She had made significant efforts to solve her problems and her motivation to change seemed to be her children. Relations between her and the Department of Community Services seemed satisfactory. The applicant was cooperative and was attending counselling and ensuring that the children's health was being properly looked after. 12 Dr Peter Nelson, psychologist, wrote a report. He had interviewed and tested the applicant. He noted that she could not function without Methadone and that she had had periods of alcohol abuse. He concluded that this behaviour was "wholly congruent with a person who has a substance abuse clinical syndrome". Referring to his test results, Mr Nelson thought that the applicant was suffering from a personality disorder that had at its core self-destructive behaviours, low self-esteem, inability to function without the use of drugs and alcohol, impulsive behaviour, antisocial acting-out, emotional dyscontrol and the formation of self-destructive relationships. He considered that the applicant needed rehabilitation counselling for substance abuse and that her underlying personality disorder needed treatment. He thought that a stable living situation was essential. He thought that if it were possible to impose supervision without incarcerating the applicant there would be a constructive result for the applicant and her children. 13 Detailed and extensive submissions were made to his Honour. His Honour was informed that the applicant was contrite and was trying to make amends, in an admittedly modest way, in that certain amounts were being deducted out of her benefit each week. She had the care of the four children and was undergoing counselling. Although she had a substantial record of offences of dishonesty, that offending could be seen to have been associated with the addiction to heroin, now past, and the applicant had not so offended for a good number of years. The applicant was attending counselling, looking after her children properly, coming to terms with those officials who were concerned about the welfare of her children and making a good fist of things. It was submitted that she had good prospects of rehabilitation. The probable dire consequences for the family if the applicant should be sentenced to a period of full-time custody were that the children would be separated from each other as well as from their mother. His Honour was asked to suspend any sentence he decided to impose. 14 The first ground of appeal complains that his Honour failed to give adequate reasons for the sentences. In particular, his Honour did not disclose how he had assessed the objective gravity of the offences, how he assessed the applicant's subjective case and her prospects of rehabilitation, how he assessed the circumstances of the applicant's children and determined that the case was not exceptional in that it was not appropriate to suspend the whole of the sentence, how he took into account the pleas of guilty and how he determined that a partial accumulation of sentences was called for. The second ground asserts that his Honour erred in failing to determine that the case was exceptional and in not suspending the whole of the sentence. The third ground complains about the partial accumulation of the sentences and the fourth asserts that the overall sentence is excessive. 15 His Honour's remarks were as follows - This matter relates to defrauding Social Security if I may put it in that broad way. The offender was committed for sentence in respect of two matters and because of the absence of appropriate documentation, the Crown very helpfully provided an indictment. The advantage of that is that, should the matter require consideration anywhere else, there is no mistaking what I have been dealing with today. The two counts relate to the periods between June 2001 and May 2004 in respect of count 1, June 2001 and April 2004 in respect of count 2, and what happened was that this offender who was already obtaining appropriate benefits in either her name or an accepted substitute name because of difficulties in her past, in addition obtained benefits for those by putting forward a different identity. In other words, it is a double claim as I understand it, over those periods of time. Exhibit A sets out the relevant facts. That is the period of time we are looking at which is nearly three years and the total amount that is involved is some eighty-six thousand dollars, which is a very substantial amount of money. Now, as is not unusual I'm afraid in these cases, the offender has had difficulties in her past life, many of them not of her making, although it is relevant to note that she has appeared in the Courts on a number of occasions in the past in connection with offences of dishonesty. She has been making strides recently in holding her family together particularly her various children and it is substantially that issue which has concerned me and I have been very much assisted by the detailed submissions of counsel as to how to approach this case because one starts from the premise that offences such as this as has been said in innumerable cases, required deterrent sentences of imprisonment to protect the community and to send out clear messages to the community and it is for that reason that I am satisfied that no other way of approaching this is appropriate. This issue then boils down to whether it is necessary for any part of that sentence or what part of it to be immediately effective, should it be less than three years. Without jumping too far ahead, it, in total will not exceed three years as will become apparent and therefore, it is appropriate to deal with the considerations arising from that because the Commonwealth legislation, again I am very grateful to counsel for assisting me on this, makes it clear that such a sentence is capable of being wholly suspended. I have been further referred to a number of very helpful authorities giving a range of views in a range of situations. The first thing I have to say is in relation to the background here, and I am making particular reference to the children in particular Jasmine and to the baby, and of course to the other children. They will all be seriously affected by the absence of their mother, should she receive a custodial sentence. It is further said by Ms Cusack that not only will they be affected by that but internally, the family may then be divided by having to go in different directions because of the background set out in detail in the reports. I find that very distressing and it is very upsetting but I am afraid I cannot describe that as exceptional because in my experience, and in my view, every family one parent of which receives a custodial sentence, suffers grievously. It is often the innocent who suffer just as much and I, having considered the various authorities about exception circumstances, I do not find anything here to come within that description as far as I am concerned. That being the case, it follows that part of this sentence is going to have to be immediately effective. What I have taken into account in assessing the overall situation are those distressing subjective factors to which I have already referred, a plea of guilty which entitles a benefit to be extended to the offender and I have further considered the situation about Pearce. There are two separate groups of claims under this false name and they call for separate sentences but what I have determined to do is to make them, having assessed the appropriate sentence which I think is one of eighteen months in respect of each offence, I have assessed that in the Pearce approach as not being accumulative, but I think they should be partly cumulative and accordingly, the sentence I pass in respect of count 1 is eighteen months imprisonment commencing on 12 April 2006, expiring on 11 October 2007. As far as count 2 is concerned, the sentence will commence on 11 April 2007 and that will expire on 10 October 2008. I note by reason of s19 that I make 1 recognisance release order. That is pursuant to s19AC1, that I must impose a single recognisance order. The recognisance release order I impose is that after serving 12 months of that sentence, the offender is to be released on recognisance with security but without sureties in the sum of five hundred dollars, on condition that she will be of good behaviour for the balance of the sentence. I make no order about reparation because I make a separate order about that and I do not think it appropriate to make any other requirements and it certainly is not appropriate to impose a fine. So that, as I understand it means that after the twelve months, you will be released on a recognisance that you be of good behaviour and as long as you are of good behaviour, then after the balance of the sentence is concluded, that will be an end of the matter. I further order pursuant to the submissions of the Crown that there be a finger printing order pursuant to s3ZL, I order that finger prints be taken and I order reparation pursuant to s21B Crimes Act in the amount of eighty-one thousand, three hundred and seventy-eight dollars payable to the Commonwealth. On the basis that there is no representation otherwise, that is the sentence I impose. 16 Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done: R v Thompson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [42]. It is desirable that sentencing judges summarise precisely and carefully the facts giving rise to the offences and set out their findings in relation to all matters taken into account in mitigation or aggravation of sentence as well as the reasoning which leads to the sentence imposed: R v Hoadley Court of Criminal Appeal, 14 September 1990 unreported per Wood J. Sentencing judges ought, however briefly, to state the findings of fact upon which they are persuaded to proceed and expose a coherent process of reasoning which will sufficiently equip this Court to intervene in an appropriate case: see R v Duffy [1999] NSWCCA 321 per Sully J at [11]; see also generally Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. 17 The circumstances of the children's care during the few years immediately before the applicant stood for sentence were remarkable and called for detailed and careful consideration. His Honour was obliged to consider the probable effect the sentence he had in mind would have on the family and the dependants of the applicant: Crimes Act (Commonwealth) s16(2)(p). His Honour correctly recognised that hardship to a child had to be "exceptional" before it could be given substantial weight in the sentencing discretion: R v Edwards (1996) 90 A Crim R 510 per Gleeson CJ at 516-517. 18 I think that his Honour must have weighed the probable effect of a custodial sentence on the children, but how his Honour did so and how he reasoned to the conclusion that the case was not exceptional was left unstated. So his Honour's failure to expose the process of reasoning has led to the appearance, and the feeling the applicant undoubtedly has, that insufficient consideration was given to the matter. 19 There are other important aspects of the case that were left unmentioned. A respectable case had been put before his Honour for the conclusion that the applicant, following a life of dishonesty, addition to drugs, turmoil and failure had begun to make something of herself. The strong submission was made that she had good prosects of rehabilitation, indeed, was well on the way to rehabilitating herself. There was detailed reference in the evidence and in the final submissions to the applicant's preparedness to take part in drug and alcohol counselling and continue the steps she had taken to manage her children in a responsible way under the supervision of the Department. The remarks on sentence contain no reference to these matters other than the statement that the applicant had been making strides recently in holding her family together, particularly her various children. 20 His Honour made no reference to the several reports I have mentioned and the judgment does not enable the reader to know whether his Honour gave weight to the opinions expressed by the writers of those reports. 21 Accordingly, I think that the remarks on sentence fell short of what the law required. 22 Some other criticisms were levelled at the sentence imposed. First, it was asserted that his Honour made reference to s16A Crimes Act and to the necessary assessment of the objective gravity of the offences and the subjective case. I have already dealt with some of the subjective matters, but it seems to me that there was no need for his Honour to deal extensively with the objective seriousness of the case. The facts were stark. Here was a defrauding of the Commonwealth of a sum exceeding $86,000.00 from two separate agencies, following upon two separate and fraudulent applications, effective over a period of almost three years. Those facts alone are clear from the judgment and sufficiently exposed the objective seriousness of the offences to my mind. The question for this Court is whether his Honour really did consider and weigh the other features which I have mentioned. 23 The opinions put forward by the several reporters were unchallenged. The Crown did not submit below that the facts asserted in the reports or that the conclusive opinions based upon them ought not to be accepted. It was not submitted below that the reasons put forward by the applicant in her interview with the officers of the Department ought not to be accepted at face value. Although the case was no doubt a difficult and distressing one, the facts which had to be considered were uncontroversial. Perhaps that explains in part why his Honour did not express his findings. I think that his Honour may well have accepted at face value the facts contended for by the applicant's representative. His Honour may well have approached the sentencing and the ultimate question that arose therein, namely whether the subjective case was so strong as to displace the ordinary consequence that a custodial sentence would have to be imposed, upon the basis that the applicant's subjective case was made out. However, the matter was left in doubt, and therein lies error. I think that the first ground of appeal has been made good. 24 Since the thrust of the submissions at first instance was that the sentences ought to be wholly suspended and in this Court that they were excessive because they were not wholly suspended, the second and fourth grounds of appeal really raise the same question. 25 As his Honour recognised, whether the likely effect of a custodial sentence on the applicant's family is to be given significant weight rather depends on the objective seriousness of the offences themselves. When an offender is sentenced for fraud upon the social security services, a custodial sentence is to be imposed unless there appear very special circumstances justifying some more lenient approach: R v Luu Court of Criminal Appeal, 7 December 1984 unreported; R v Medina Court of Criminal Appeal, 28 May 1990 unreported; R v Mears (1991) 53 A Crim R 141; R v Purdon Court of Criminal Appeal, 27 March 1997 unreported. The only circumstance put forward as making the present case very special was the likely effect of a custodial sentence on the children. The principal question that arises on appeal is whether, giving weight to the applicant's subjective circumstances, it would be within the proper sentencing discretion to impose a sentence less than one having a substantial component of full-time custody. 26 I have shortly stated the objective seriousness of the offences. In my opinion the large sum of money involved and the period of time over which the deception took place require the imposition of a substantial custodial sentence, notwithstanding the respectable subjective case put forward on behalf of the applicant. Each offence attracted a maximum sentence of imprisonment for five years and in my opinion a sentence of two years and six months incorporating a custodial portion of twelve months and a balance dealt with by recognisance is unremarkable in all the circumstances. 27 It was submitted under the third ground of appeal that his Honour erred by partially accumulating the sentences. In my opinion that ground has not been made good. The evidence does not reveal the precise circumstances in which the applications were made, other than that they were made on the same day. But it is clear that they were separately made, using separate forms, to separate agencies of the Commonwealth. So they were separate from their inception and their effects were separate. Provided his Honour imposed an overall sentence which did not exceed the totality of criminality, therefore, his Honour was entitled to a degree to accumulate the sentences. 28 When the Court hears an appeal against sentence and it is of the opinion that a lesser sentence is warranted, its duty is to quash the sentence and pass sentence in substitution therefor, but otherwise to dismiss the appeal: see Criminal Appeal Act s6(3). Since I am of the opinion that no lesser sentences than those appealed from are warranted I would dismiss the appeal. I propose the following orders - 1. Grant leave to appeal; 2. Dismiss the appeal.