Yarak v R [2008] NSWCCA 298

New South Wales Court of Criminal Appeal

CITATION: Yarak v R [2008] NSWCCA 298

HEARING DATE(S): 27 November 2008

JUDGMENT DATE: 11 December 2008

JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application to appeal against severity of sentences - imposing on the Commonwealth by untrue representation - dishonestly causing loss to a Commonwealth entity - single parenting payments - employment - plea of guilty - whether applicant suffering from depression and a dissociative behavioural state - expenditure beyond living expenses - hardship in separation from son - requirement for exceptional circumstances not met - whether sentences are manifestly excessive

LEGISLATION CITED: Crimes Act (Cth) 1914 Criminal Code 1995

CATEGORY: Principal judgment

PARTIES: Coreen Monique Yarak (Applicant) Crown (Respondent)

FILE NUMBER(S): CCA 2007/15645 - 002

COUNSEL: P Boulten SC (Applicant) WJ Abraham QC (Crown)

SOLICITORS: Pryor Tzannes & Wallis (Applicant) C Craigie SC (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0870

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 15 February 2008

IN THE COURT OF CRIMINAL APPEAL 2007/15645 - 002

GILES JA LATHAM J MATHEWS AJ

Thursday 11 December 2008 Coreen Monique YARAK v R Judgment 1 GILES JA: I agree with Mathews AJ. 2 LATHAM J: I agree with Mathews AJ. 3 MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed in the Sydney District Court on 7 March 2008. The applicant had pleaded guilty to five charges. The first two were of imposing on the Commonwealth by an untrue representation, contrary to s 29B of the Crimes Act (Cth) 1914. The remaining three charges were of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1 of the Criminal Code 1995. The charges under s 29B carried a maximum sentence of two years imprisonment. Those under s 135.1 carried a maximum of five years imprisonment. 4 In relation to the two charges under s 29B, the applicant was sentenced to a fixed term of six months from 7 March 2008. A fixed term of three months, also commencing on 7 March 2008, was imposed in relation to the first of the three charges under s 135.1. In relation to the two remaining charges under that section, the applicant was sentenced to imprisonment for 18 months commencing on 7 September 2008, with an order that she be released on recognisance after nine months. Accordingly, the effective sentence in relation to all offences was a total imprisonment of two years with a release on recognisance after 15 months. 5 The background of the offences is as follows: in 1998 the applicant, who was then separated from her husband, applied for single parenting payments in relation to her son who was born on 22 September 1995. Between 14 March 2000 and 7 January 2007 these social security payments were deposited into the account of the applicant's son at the Commonwealth Bank of Australia. The applicant was a signatory to that account. Between March 2000 and January 2007 the applicant was employed, initially part-time, but later on a full-time basis, with Image Technology Centre Pty Ltd. Her income from that employment was paid into a Commonwealth Bank account in her own name. During that period of nearly seven years the applicant earned over $228,000 from her employment, which she failed to declare to the Commonwealth. As a result, $75,075 was overpaid to the applicant by way of Parenting Payment Single. 6 The five charges relate to this single course of conduct. The different offences arise because of changes in the legislation. The dates of the s 29B offences are 14 March 2000 to 12 September 2000 and 10 October 2000 to 22 May 2001. The dates of the Criminal Code offences are 23 May 2001 to 5 June 2001, 3 July 2001 to 28 December 2004, and 25 January 2005 to 7 January 2007. 7 The offences came to light when officers from Centrelink cross-matched information with the Australian Tax Office. 8 On 16 July 2008 an application for leave to appeal was filed on behalf of the applicant. The grounds of appeal were as follows: 1. Her Honour erred by failing to mitigate the applicant's sentences in a significant way to reflect the fact that she was, at relevant times, suffering from depression and a dissociative behavioural state. 2. Her Honour erred by failing to mitigate the applicant's sentences because of the hardship that would be caused by her separation from her son. 3. Her Honour erred by failing to take into account the applicant's remorse, her rehabilitation and the fact that she is unlikely to re-offend. 4. The two sentences of 18 months and their associated recognisance release orders of 9 months' duration are both manifestly excessive. 5. The total effective sentence is manifestly excessive. 9 Before discussing these grounds it is appropriate to say something about the applicant's background and the circumstances in which the offences were committed. 10 The applicant is now 32 years old, having been born on 24 February 1976. She has no prior convictions of any nature. Her family background was supportive and her childhood essentially uneventful, at least until she met the man who was to become her husband. This apparently happened in her second year of high school. In due course they became engaged, and on the insistence of her fiancé's mother, the applicant left school. They were married less than a year later when the applicant was 18 years old. The applicant's mother-in-law was a controlling, difficult woman who was clearly hostile towards the applicant and over-intrusive in the marriage relationship. In September 1995 the applicant's son Joseph (Joey) was born. It appears that the applicant suffered from post-partum depression for which she was inadequately treated. When Joey was about three months old, her husband told her that she would have to leave the marital home because his mother wanted it that way. The applicant and her son moved in with her parents where they remained until she went into custody in relation to these matters. Her son is currently being cared for by her parents. 11 Two psychiatric reports of Dr Robert Hampshire were before the sentencing judge. The first, dated 7 August 2007, described the applicant as being severely depressed. He also commented that she had symptoms of post-traumatic stress disorder arising from the traumatic experiences of her mother-in-law and the separation from her husband. However he was not prepared to make a firm diagnosis of post-traumatic stress disorder. Nevertheless, he went on to opine that the dissociation which accompanies post-traumatic stress disorder might well have been involved in her offending behaviour. He expressed the belief that the applicant did not deliberately try and defraud Centrelink, but "… rather went on in this behaviourally dissociative state not really focussing on the significance or criminality in the way she was behaving in that manner. And she did the best for her child, traumatised and depressed as she was and is." 12 Dr Hampshire considered that the applicant's prognosis was good. In his later report, dated 14 February 2008, he said that her depression had settled significantly but not completely. 13 Also before the sentencing judge was a reference from the applicant's employer attesting, in highly favourable terms, to her participation in the Company's enterprises and to her "mature attitude". She was described as a valued employee who will play an important role in the future of the company. 14 After being charged with these offences, the applicant started making restitution payments of $350 per week. By the time of sentence the amount payable to the Commonwealth was reduced to $70,109.37. 15 The applicant herself gave evidence in the sentencing proceedings. She became so distressed when starting to describe her background that it was agreed that the account contained in Dr Hampshire's report would suffice for these purposes. The offender said that she and her son had continued to live with her parents since her separation from her husband. They cared for her son whilst she was at work. However she devoted her weekends to him and she was the central person in his life. He saw little of his father. She said that she knew that she was breaking the law in not telling Centrelink about her employment but did not realise the consequences. She was asked whether she ever considered calling Centrelink and telling them that she was employed. She said: "I wanted to but I was in such a hole I didn't know how to get out of it. I didn't know how to get out, I was so scared." She also said: "I never did it to be rich. I only did it to survive." 16 In cross-examination however, it became clear that significant amounts had been paid for items which went beyond mere living expenses; at clothing stores, hair salons, jewellery shops and makeup salons. In addition, the applicant purchased a new Toyota Celica vehicle. As the sentencing judge commented, the applicant's lifestyle indicated a degree of extravagance, and her purchases went considerably beyond what was necessary for basic survival. 17 This takes me to her Honour's remarks on sentence. Her Honour, having given details of the various offences, turned to the applicant's personal history. Her Honour regarded Dr Hampshire's report as lacking in professional objectivity and written in such sympathetic and partial terms that he had assumed the role of advocate rather than expert. Accordingly, the weight to be attached to his report was reduced. Her Honour referred to the fact that the applicant maintained separate bank accounts for the receipt of her employment income and the receipt of the social security benefits and concluded that the applicant did not commit the offences in a dissociated state or disabled by depression so as to mitigate her culpability in any significant way. 18 Her Honour noted the applicant's early plea of guilty for which a discount of 25% was specified. Her Honour determined that a full-time custodial sentence was required notwithstanding the applicant's need for psychiatric treatment and the impact upon her son of her incarceration. In this latter respect she noted that it would be hard for the mother and son to be separated, but that the child would be cared for by his grandparents. The family circumstances did not constitute exceptional hardship. Her Honour then proceeded to impose the sentences referred to earlier. 19 I shall discuss the grounds of appeal sequentially.