District Court New South Wales Medium Neutral Citation: R v Susan Lee [2011] NSWDC 257 Hearing dates: 16-17 November 2011 Decision date: 09 December 2011 Before: Letherbarrow SC DCJ Decision: Sentenced to a total term of imprisonment of 12 months with a recognizance release order after 6 months. The offender make reparation to the Commonwealth in the sum of $118,352.71. Catchwords: CRIME - Sentencing - social security fraud -custodial sentence imposed unless very special circumstances - effect of sentence on offender's family or dependants - relevance of mental illness - relevance of gambling - relevance of delay in charging Legislation Cited: Crimes Act, 1914 (Cth), s4J(1), s16A, s16A(2)(g), s16A(2)(p), s19B, s20(1)(B), s21B, s29B Criminal Code, 1995 (Cth), s135.1(1) Cases Cited: R v Sinclair (1990) 50 ACrimR 418, R v Hart [1999] NSWCCA 204, R v Alla [2004] NSWCCA 378, R v Wood [2005] NSWCCA 233, R v Low, R v Ouyang [2004] NSWCCA 382, R v Capper [2000] NSWCCA 63, R v Togias [2001] NSWCCA 522, Le v Regina [2006] NSWCCA 136, R v Winchester (1992) 58 A Crim R 345, R v Hemsley [2004] NSWCCA 228, R v Molesworth [1999] NSWCCA 43, Pearce v The Queen (1998) 194 CLR 610 Category: Sentence Parties: Commonwealth Director of Public Prosecutions - Crown Susan Lee - Offender Representation: Commonwealth Director of Public Prosecutions Mr Vertigan Commonwealth Director of Public Prosecutions Legal Aid File Number(s): 2010/235756, 2010/235938 Publication restriction: Anything identifying the identity of the deceased person SENTENCE 1The offender has pleaded guilty to 2 charges relating to social security fraud. 2The first is that contrary to s 29B of the Crimes Act, 1914, (the Act) between 24 August 1998 and about 23 May 2001, she did impose upon the Commonwealth Services Delivery Agency (Centrelink), a public authority under the Commonwealth, by an untrue representation with a view to obtain money. The maximum penalty for such an offence is imprisonment for two years and/or a fine of $13,200. 3The second is that contrary to s 135.1(1) of the Criminal Code, 1995, (the Code) between 7 June 2001 and about 21 February 2008 she made a representation with the intention of dishonestly obtaining a gain from Centrelink. The maximum penalty for such offence is imprisonment for five years and/or a fine of $33,000. 4Both charges relate to an ongoing fraud committed by the offender between 24 August 1998 and about 21 February 2008, a period of almost 9.5 years, during which time she received, in total, $118,352.71 to which she was not entitled and for which the Commonwealth is seeking a reparation order pursuant to s 21B of the Act. Mr Vertigan, who appeared for the offender, did not wish to be heard in relation to the making of such an order. 5This sum of $118,352.71 is broken up as to its receipt with $30,841.77 relating to the first charge and $87,510.94 relating to the second charge. It was common ground that the section under which the first charge was laid was replaced by the section under which the second charge was laid during the period in which the fraud was being perpetrated, resulting in the two charges being brought. 6The Agreed Statement of Facts (Exhibit A4) may be summarised as follows. 7Both offences relate to the offender obtaining monies in the name of a deceased person, a Mr A, after his death by representing to Centrelink that he was still alive and entitled to the aged pension. 8In January 1996 when Mr A was still alive and aged 77, he signed and lodged a claim for the aged pension at the Cabramatta Centrelink office. He requested that such pension be paid into his Commonwealth bank account. He also co-signed with the offender an authority for release of personal classified information in which the offender was designated as his nominee. This latter document enabled the offender to contact Centrelink on Mr A's behalf and permitted her to enquire as to and update his Centrelink record. 9As a result, from 18 April 1996 payments of the aged pension were made into Mr A's said account on a fortnightly basis with the last payment being made on 20 August 1998. On 24 July 1997, Mr A passed away. Centrelink was not notified of his death. 10On 24 August 1998, the offender contacted Centrelink purportedly on the half of Mr A and advised that she was his daughter and requested that his aged pension payments be paid into an account with the Westpac bank which was in fact her account in her own name. 11From 3 September 1998, Centrelink deposited Mr A's aged pension payments into the offender's said account on a fortnightly basis and she regularly withdrew such funds by the use of an ATM card. 12On 10 December 1998, Centrelink suspended such aged pension payments when correspondence sent to the address of Mr A on file was returned and attempts to contact him via the phone number on file revealed it was disconnected. The next payment which was due to be made on 24 December 1998 was accordingly not processed. 13On 6 January 1999, the offender contacted Centrelink, purportedly on Mr A's behalf, and advised that he had moved to the offender's address. As a result Mr A's Centrelink records were updated and the aged pension reinstated with the next payment, including arrears, of $1,088.10 being paid into the offender's account on 29 January 1999. Prior to this payment this account contained less than $50. On 3 January 1999, the offender withdrew $1,000 from the account via an ATM at Star City Casino. 14In March 2002, Centrelink sent a request to Mr A for information as to his rental payments. On 28 October 2002, the offender lodged a rent certificate with Centrelink purportedly on behalf of Mr A. The landlord's declaration was completed by "Susannah" who recorded her address as the same as that of Mr A and the offender. A further rent certificate in Mr A's name was lodged with Centrelink in May 2003 confirming his address. 15On 11 September 2007, the offender contacted Centrelink, purportedly on behalf of Mr A, and sought an advance payment of the sum of $500. This was granted and paid into the offender's account two days later. Prior to this deposit, the account contained less than $5. On the same day the offender withdrew $500 from the account via an ATM in Cabramatta. 16On 28 February 2008, search warrants were executed upon the offender's premises and in relation to her car. The relevant ATM card was found in the offender's handbag. During the execution of these warrants, the offender made an admission of wrongdoing as mentioned in the transcript of the taped record of the search which is Exhibit 7. This transcript also reveals that the offender's elderly mother fainted towards the end of the search and an ambulance was called. 17The Agreed Statement of Facts was amended to include the fact that on 29 February 2008 the offender was sent a letter from Centrelink offering her the opportunity to participate in an interview and that this did not take place. 18For reasons unknown and which the Crown did not seek to explain, the two court attendance notices in relation to the charges in question were not issued until 4 June 2010 and not served upon the offender until 8 June 2010, well over two years after the execution of the search warrants and the offender's admission of wrongdoing. 19The offender did not attend Liverpool Local Court on 5 August 2010, being the return date for both court attendance notices. As a result she was arrested upon a warrant and spent two days in custody which is the total period of pre-sentence custody in relation to these matters. 20I was informed that the Crown brief of evidence was served on 9 September 2010 and the matter was thereafter once adjourned at Liverpool Local Court on 4 November 2010. On the adjourned date, being 10 February 2011, the offender entered the plea of guilty to both charges and was committed for sentence to this court. 21The sentence hearing before me took place on 16 and 17 November last. During such hearing, a Dr Diep, general practitioner, gave evidence. Dr Diep is not only the long term general practitioner of the offender but also of some of her family members with whom she lives and to whom she provides assistance due to their own ill-health. 22The offender's brother, Mr B, whom does not live with her, also gave evidence as to his knowledge of the offender's health and her domestic situation. The offender herself did not give evidence. Further, Mr Vertigan tendered a considerable body of medical evidence as to these matters. 23In short, Mr Vertigan, whilst accepting that offences of this type usually require the imposition of a full time custodial sentence, argued that in this particular matter a fully suspended sentence in the form of a Recognisance Release Order pursuant to s 20(1)(b) of the Act was appropriate. In this regard he relied upon a number of factors including the offender's plea of guilty, her health, the role she played in caring for her immediate family members and the considerable delay in commencing the proceedings against her. The Crown's position was that even taking all relevant matters into account a full time custodial sentence was the only appropriate option. 24The offender has two matters on her criminal history. In August 2007, she was found guilty of making false or misleading statements in relation to an Australian travel document application in breach of s 29 of the Australian Passports Act, 2005. 25The agreed Statement of Facts in relation to this matter is Exhibit B. It reveals that the offender became an Australian citizen in June 1997 and in February 2005 applied for and was issued with an Australian passport. In February 2007, the offender changed her name through the New South Wales Department of Births, Deaths and Marriages from Susan Lee to Anna Xie and in the same month applied from Australian passport in that name answering in the negative a question on the relevant form as to whether she was replacing her most recently issued (or concurrent) Australian passport that has been lost or stolen. In relation to that matter no conviction was recorded pursuant to s 19B of the Act and she was released on entering into a recognisance to be of good behaviour for six months. 26At the foot of the Agreed Statement of Facts in relation to that offence it is recorded that the offender was then "employed as a manager of Fruit World, Burwood Plaza". 27More recently, the offender was dealt with under the mental health legislation in August of this year in relation to certain charges of behaving in an offensive manner and resist/hinder and intimidate police. This is further discussed below. 28This subjective circumstances of the offender, all of which I have taken into account, were described in the evidence of Dr Diep and her brother Mr B and are further detailed in the medical evidence referred to above which is contained in Exhibits 1 - 8 inclusive. 29The offender informed Dr Martin Forensic Psychiatrist, whom she saw for the purposes of preparing a report (Exhibit 5) in this matter on 9 November last that she was born in Cambodia on 5 February 1986 and emigrated with her family to New Zealand as refugees in 1982. She completed her schooling in New Zealand and began but did not complete a Bachelor of Commerce degree before coming to Australia in 1994. She also told Dr Martin that shortly after her arrival in Australia she commenced gambling and, further, that she "associated the offending behaviour with her financial need resulting from in part, gambling". 30The offender has never married but has two children, both of whom live with her and whom are currently aged 13 and 15. She also resides with two of her sisters, C aged 59, D aged 43, as well with C's own child aged 13. Finally, the offender's and C and D's abovementioned elderly mother, E, now aged 80, lives in the same residence. 31There is no evidence that either the offender's teenage children or the child of her sister has any health problems. 32In relation to the offender's mother's health there is a report from Dr Diep and an annexed health summary sheet, both dated 15 May 2011 (Exhibit 1(b)) which indicate that she is suffering from, inter alia, advanced bilateral knee arthritis, coronary and valvular heart disease, hypertension, hypothyroidism, poor lung function and chronic low back pain and that she is on multiple forms of medication. Her mobility is poor. In this report, Dr Diep described E's medical condition as chronic, permanent and deteriorating with age for which she needs "long term support and care from her family members, including medication supervision". On her health summary sheet her "social history" is described as "stay with large family, supportive". In the concluding paragraph of his report Dr Diep records that the offender "is the only daughter who has been able to look after her mother ... and her sisters" and that any "gaol sentence imposed on (the offender) would definitely significantly affect (her mother's) health and her survival". 33In relation to the offender's older sister Dr Diep has provided a report and health summary sheet both also dated 1 May 2011 which are Exhibit 1(d). These reveal a past history of asthma and low back pain but, more importantly, a long-term history of a post traumatic stress disorder, psychosis together with, a diagnosis of schizophrenia made in 2007. Dr Diep records that her "mental condition has been deteriorating" and that she had two admissions to Liverpool Hospital between February and April and May and September 2010 as a result of poor compliance with her medication, alcohol abuse and aggressive and violent behaviour towards the household's children coupled with a "thought of stabbing her sister". Dr Diep goes on to record that since her last discharge from hospital she "has been under compulsory and supervised treatment" and that she was also diagnosed at the time of her last admission with diabetes. In relation to C, Dr Diep said that the offender "has been the most critical person to deal with the disrupted family life when (C's) mental condition became out of control, aggressive and violent". Dr Diep further states that, inter alia, if the offender is sentenced to gaol on a full-time basis C "would likely be poorly compliant to treatment again in the future and become aggressive". 34In relation to the offender's sister D, Dr Diep has again provided a report and and health summary sheet both dated 1 May 2011 which are Exhibit 1(c). An examination of same reveals that C has long term history of suffering from a post traumatic stress disorder, "chronic non-specific psychotic disorder", chronic anxiety and, inter alia, chronic neck and shoulder pain. Again Dr Diep opined that all of her listed medical conditions are permanent and she "needs long term support and care from her family members, including medication supervision". Dr Diep further states that any gaol sentence imposed upon the offender "would definitely significantly affect (D's) health and survival". This comment as to D's survival would seem to flow from C becoming, as Dr Diep put it, "out of control" in relation to her "severe schizophrenia" upon which occasions D has been the "subject of aggressive violence" from her. 35In relation to the offender's own health, Dr Diep has provided a similarly dated report in which he states that the offender "has been suffering from hypothyroidism" first detected in June 2010 and which requires 18 months of anti-thyroid medication or iodine therapy to bring it under control together with ongoing specialist review. 36In this report Dr Diep states that it is his understanding that "except (for the offender), all other members of the extended family has been working or busily running their own business" and that the offender has been the "only carer for her mother and two mentally ill sisters" and that there "would be no one else in the extended family to step into her place to provide the required support and care" of her mother and two sisters should she be sentenced to gaol. Dr Diep concludes that any such gaol sentence "would potentially be leading to critical, disastrous family situation, would significantly and adversely affect her mother's, sister's health and their survival". 37More recently the offender herself was admitted to Banks House where she was diagnosed as suffering from a "bipolar affective disorder with a manic episode" (see exhibit 4) for which she was commenced on medication which led to her symptoms fairly rapidly largely resolving. The author of exhibit 4, Dr Christabel Hill, consultant psychiatrist from Banks House goes on to state that the offender's prognosis, "if she continues to take her medication is good". 38Prior to her admission to Banks House Exhibit 3, a further report from Dr Diep dated 2 August 2011 reveals that the offender had shortly beforehand returned from an overseas trip which occurred apparently together with her mother and a "whole group of family and relatives" who took the offender with them "because she had been talking to a tree, a dog and laughing to herself" shortly before it. Dr Diep goes on to record that during the subject trip there was "more bizarre behaviour" and the offender came to the attention of airport security staff at Shanghai. 39Dr Diep records that he was informed that further abnormal behaviour from the offender took place on the night of 1 August 2011 and that the offender ended up at the Cabramatta Police Station resulting in her arrest and the charges referred to above being laid against her. Dr Diep assessed her the next day and found her to be suffering from visual hallucinations and paranoid ideation and he formed the impression that she was suffering from depression with a psychosis. It would appear that she was shortly thereafter admitted to Banks House from which she was discharged on 22 August last. Exhibit 8, a handwritten letter from the nursing unit manager of Banks House revealed that on the day it was written, being 11 August last, the offender remained an inpatient "but now has periods of leave each day". 40Prior to the offender's trip overseas, Dr Diep provided a further report dated 24 July 2011 containing various annexures (exhibit 2) which is addressed to Mr Vertigan in response to his letter seeking further clarification and apparently also for the purpose of addressing certain "objections" to his earlier reports raised by, apparently, an officer of the Crown after such earlier reports had been served. In this report Dr Diep expands upon the matters referred to above essentially adhering to his view that if the offender is sentenced to a term of imprisonment the situation "would potentially be leading to critical disastrous family situation ...". Dr Diep further records that "the family always needs the presence, day and night, of a healthy person to supervise (C) treatment, closely watch and observe her medical condition and seek help, to intervene immediately to deal with aggression and violence to prevent disaster to the family". Dr Diep does state that the "critical disastrous family situation" referred to above exists "unless another replacement" for the offender can be found. In the penultimate paragraph of this report, Dr Diep makes similar predictions as to the future without "the presence of (the offender), unless a replacement ..." can be found. 41As to the offender's hypothyroidism, two reports are in evidence from Dr Naidu, consultant and endocrinologist, dated 3 May and 28 October 2011 (Exhibits 6 and 7). 42In Exhibit 6, Dr Naidu concludes that the offender's "overall prognosis is considered to be good" as to her hypothyroidism but that ongoing blood tests are necessary to monitor it in order that her medication be adjusted appropriately. Further, Dr Naidu opined if the offender "were not to achieve remission" she would require radioiodine therapy orally coupled with further blood tests. 43In Exhibit 7 Dr Naidu reports that the offender's "hypothyroidism is stable at present" and that she continues on the relevant medication with a need for 6 to 8 weekly blood tests and that if she does not achieve remission with such medication the "use of radioactive iodide will be considered". Further, he reports that the offender has been to his knowledge assessed by a cardiologist and has been found to be suffering from a mild to moderate "mitral regurgitation" which does not require any specific treatment but does require long term monitoring. In respect to both conditions, Dr Naidu states that her "overall prognosis ... is considered to be good" although he goes on to state that "incarceration could affect her compliance to medication treatment for her thyroid condition". 44As a consequence of an order which I made at the conclusion of the sentencing hearing before me, Justice Health has provided a report dated 2 December 2011 under the hand of Dr Ette "Assistant Clinical Director Womens' and Primary Health" (Exhibit C). This report was provided to both parties who have made some additional short written submissions in relation thereto and to which I have had regard. 45In short, Dr Ette, who was provided with Dr Naidu's reports by Mr Vertigan, state that should the offender enter custody her present treatment regime will be continued including the relevant blood tests and her condition would be monitored by medical staff and an endocrinologist at either the Prince of Wales or Westmead hospitals depending upon "where the patient will be housed". 46Dr Ette goes on to state that if remission is not achieved in relation to the hypothyroidism the offender will be referred to the relevant hospital's nuclear medicine facility and treated accordingly. 47In respect of her mitral valve regurgitation, Dr Ette states that she would be reviewed by Justice Health who would work in conjunction with specialist services at the Prince of Wales Hospital where she could be reviewed and assessed by a cardiologist if required. 48As mentioned above, the offender was seen by Dr Martin, forensic psychiatrist, on 9 November last for the purpose of providing a report to those acting on her behalf. Upon examination, Dr Martin established a good rapport and noticed that the offender was not agitated or restless and that there were no overt delusions and she denied any suicidal or violent ideation although he does record that she stated she "occasionally hears voices" and displayed some abnormal facial movements which were possibly the signs of "anti psychotic medication and schizophrenia". He recorded that the offender "recognised that her previous disorganised and bizarre behaviour was attributable to mental illness". 49Dr Martin opined that her earlier admission to Banks House with a diagnosis of bipolar affective disorder "suggests that she has severe major mental illness, although I would note that her symptoms appear to be currently under control with medication". 50As to the existence of any connection between the offending and any mental illness of the offender, Dr Martin states as follows: "The offender has a lengthy history of gambling addiction, which can also be seen to be another mental illness but is also frequently associated with bipolar illness. All the available evidence suggests that she was extremely ill when admitted to Banks House and in the months leading up to what sounds like a chaotic travel experience where she exhibited disorganized and bizarre behaviour in the context of psychosis. On questioning of her about when her symptoms first arose, I did not gain a history of having been manic in the time before this although she did give a history of being depressed and even suicidal in the years before. The history she gave suggested that her gambling led to financial problems which may have been associated with the fraudulent offences. In my experience, it is not uncommon for gambling to be associated if not caused by depressive or bipolar illness. From the information available to me including her own account, I did not gain a history of her having been manic or psychotic with major mental illness at the time of the Centrelink fraud. It is conceivable that she did have symptoms and disability associated with bipolar affective disorder in the years before her admission which did not result in clinical contact, but which was related to poor judgment on her part." 51As to her prognosis, Dr Martin described this as "probably reasonable, especially in light of the fact that she appears to be committed to caring for her family and she does not appear to have a co-existent drug and alcohol problem". Dr Martin indicated that due to "her apparently stable current mental state, I do not see any impediment to her continuing to take care of her family members as she has apparently instructed she wishes to do, although I note that it must be of significant strain and that she will inevitably require significant support from community services". 52In his oral evidence to the court, Dr Diep stated that in relation to the offender's bipolar disorder he is now very happy that her mood is stable and that she is almost back to normal with her condition well controlled by medication. 53However, Dr Diep expressed grave concern in his evidence in chief as to what would befall the other members of the offender's household if she was sent to gaol and prior to cross examination I was left with a picture of her being irreplaceable and that if she was not present for any period dire consequences would follow. 54However, as the cross examination developed, a somewhat different picture emerged. Firstly, it became clear that during the period the offender was herself unwell over approximately a two month period between July and August this year, which included when she was overseas, Dr Diep agreed that another member of her family stepped in and looked after those remaining at home including C. Further, Dr Diep also indicated that the offender's other sister whom lives with her, D, was "not big trouble" and was "stable the last few years" and in fact went overseas with the offender as did their mother. 55When I quizzed the doctor about the size of the offender's extended family to which he refers in his reports he did not answer the question but instead stated that "they all very busy". Upon further questioning he also agreed that he had heard that the offender had held down a full-time position of employment for a not insignificant time in the past and in this regard I note the abovementioned reference in Exhibit B to the offender apparently being employed as a manager of Fruit World at Burwood Plaza in August 2007. Ultimately, Dr Diep stated that from his knowledge of the family when he stated in Exhibit 1A that there was "no one else... to step into (the offender's) place" he meant that there was no one available for "an extended period". 56At the conclusion of Dr Diep's evidence I had the distinct impression that he was very much aware, at least at the time of preparing his reports, that it was in the offender's interests that she be seen as irreplaceable as a carer within her household. In saying this, I am not prepared to find that Dr Diep was attempting to mislead the court but that he did, in my view, somewhat exaggerate the true picture in this regard. 57The offender's brother, B, gave evidence that he was by training an accountant but currently runs some other business of his own. As far as I could follow his evidence, it seemed that the offender is one of nine siblings comprising seven sisters and two brothers and that most live overseas or interstate with only two or three, not including the offender, or C and D, living in Sydney. 58B went on to give evidence that approximately 5 to 6 years ago for a period of a couple of years the offender lived elsewhere at which time "we all took turns" to care for C although he went on to state that his mother at that point was somewhat younger and her own health better whereas she is now older and frailer. 59When B was asked whether there was anyone else who could move into the subject household if the offender was absent he did not answer the question directly but responded that it was not possible for anyone in the family to have all the members of the offender's household move in with them and that he would expect that his mother would not wish her household to be split up and "she'd stay put and take chance". 60B went on to confirm that when the offender travelled overseas as described above both his mother and D accompanied her and that one of their sisters who lives in Brisbane moved in to look after C for about four weeks. 61After taking into account all of the evidence relevant to the offender's family circumstances whilst I have little doubt that she plays a very important role in caring for and assisting such family, especially C, I am of the view that she is not irreplaceable in this regard and I think it likely that the members of her "extended family" will step in as they have apparently done in the past although the longer this is necessary the more problematic it will become. 62Offences of this type are objectively serious. In R v Purdon (NSWCCA, unreported, 27 March 1997), it was stated: "the strongly worded statements of this Court make it 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." 63In submissions, Mr Vertigan argued that such very special circumstances exist in the present matter due to, inter alia, the factors to which he referred as described above. 64In relation to the various compulsory matters pursuant to s 16A of the Act, all of which I have taken into account, Mr Vertigan heavily relied upon s 16A(2)(p) namely "the probable effect that any sentence or order under consideration would have on any of the (offender's) family or dependants". It has been held that this subsection does not represent a change from the common law, namely, that the probable effect must be "exceptional" before it can be taken into account: R v Sinclair (1990) 50 ACrimR 418. 65In this regard I was referred to numerous authorities by both parties as to examples of what have and have not been found to be exceptional examples in relation to this consideration including R v Hart [1999] NSWCCA 204, R v Alla [2004] NSWCCA 378, R v Wood [2005] NSWCCA 233, R v Low, R v Ouyang [2004] NSWCCA 382, R v Capper [2000] NSWCCA 63, R v Togias [2001] NSWCCA 522 and Le v Regina [2006] NSWCCA 136. 66It also appears clear that even if exceptional circumstances are established enabling s 16A(2)(p) to operate it does not always do so in such a way as to avoid the imposition of a custodial sentence. Rather, even with a finding of exceptional circumstances, a custodial sentence may still be imposed albeit of a considerably reduced duration: see R v Togias at [79] - [80], [85]; R v Wood at [12] - [15]. 67Whilst I have expressed some doubts as to the true extent of the importance of the offender's position in caring for her immediate family members, nevertheless, I am of the view and find that the probable effect of a sentence of full-time imprisonment upon the offender's said family and dependents is "exceptional" justifying a substantial reduction in the otherwise appropriate sentence however not to the extent that the offender can avoid such a sentence entirely on this basis. 68The offender has also pleaded guilty to the charges at an early stage and is entitled to have that fact taken into account pursuant to s 16A(2)(g) of the Act. Even though it was entered in the face of a strong Crown case, which is a relevant consideration in Commonwealth matters, I am nevertheless satisfied that the plea indicates a willingness to facilitate the course of justice. Whilst such plea was entered at an early time, in my view it was not entered at the earliest available opportunity. Nevertheless, the offender is entitled to a substantial discount of the order of 20% in this regard. 69However, apart from this plea of guilty, there is no evidence of contrition and none is contained in any of the medical reports referred to nor was any expressed from the bar table nor through Dr Diep or the offender's brother. Whilst Mr Vertigan did point out that the offender is repaying a debt to Centrelink which includes the sum relevant to the current offences, the current repayments are in relation to other matters not the subject of any charge. Mr Vertigan submitted that I should treat this as action taken for reparation by the offender but it is rather hard to do so when it is accepted that none of the monies relevant to these offences have as yet commenced to be repaid. 70Mr Vertigan also relied heavily upon the delay in charging the offender as one of the major factors in his submission that there are "very special circumstances" evident in the present matter justifying the imposition of a non-custodial sentence. As mentioned, the delay in charging the offender was both significant and unexplained. He compared the current matter to R v Winchester (1992) 58 A Crim R 345 although he conceded that the current situation was somewhat different in that, inter alia, the offender has not made any relevant repayments prior to the prosecution being launched. 71Mr Vertigan also submitted that this delay in commencing the prosecution has magnified the likely effect upon the offender's immediate family of any incarceration of the offender in that her mother's health has deteriorated in the period that no prosecution was launched thereby removing or reducing the availability or effectiveness of her as an alternate carer. 72In these circumstances, I have taken these matters into account as warranting some further real degree of leniency towards the offender. 73Mr Vertigan also made submissions as to the offender's good character apart from the subject offences and the fact that she has continued to care for her immediate family since their discovery and has not committed any offences since apart from that dealt with under the mental health legislation. I have taken these matters, including her lack of any significant criminal history into account although the weight to be given to previous good character is not as great where the conduct giving rise to the offence has been committed over a substantial period of time such as has occurred in the present matter. 74As to the prospects of rehabilitation, if the offender is able to continue to refrain from gambling, I regard such prospects as good. 75As to the offender's health, it was not submitted by Mr Vertigan that during any part of the almost 10 year period over which these frauds were committed the offender was suffering from a mental illness. I do not read the views of Dr Martin referred to above as indicating that he was of that view himself although he does appear to say it is "conceivable". 76In light of all the evidence, I am not satisfied on the balance of probabilities that any mental illness contributed to the offending in a material way as discussed in R v Hemsley [2004] NSWCCA 228. Not only were no such submissions made but neither Dr Diep nor the offender's brother gave any evidence of any such matters. 77It is an accepted principle of sentencing that deterrence should be given little weight in the case of an offender suffering from a mental illness because such an offender is not an appropriate vehicle for making an example to others. In this matter, whilst the evidence establishes that the offender currently has a significant mental illness, it seems well controlled by medication as stated. However, I am satisfied a custodial sentence is likely to weigh more heavily upon her and I have taken this into account in her favour in arriving at the sentence referred to below. I have also taken into account her physically based ailments to some degree although the report from Justice Health indicates that her reasonable needs should be able to be met during the course of the sentence referred to below. 78Further, whilst gambling may be an explanation for the offender's conduct, it is rarely a matter in mitigation even if it constitutes a pathological addiction: R v Molesworth [1999] NSWCCA 43. The evidence in the present matter does not establish such an addiction on the probabilities and so far as this issue has been raised I do not consider it warrants a further extension of leniency to the offender. 79Finally, I have also taken into account in favour of the offender that these matters could have been dealt with in the Local Court with the consent of both parties (see s 4J(1) of the Act) where the maximum penalty would have been less. In this respect, I was advised by the Crown that it did not consent to such summary disposal. 80The nature and circumstances of the offences have been described. The conduct upon which the offender embarked in order to obtain the significant sums involved was clearly premeditated and involved systematic dishonest conduct on the part of the offender over a period approaching 10 years. Mr Vertigan submitted that once underway the fraudulently obtained payments continued without significant input from the offender but this is not borne out by the Agreed Statement of Facts. On several occasions the offender committed positive acts to maintain the fraud. 81The court is also aware that conduct of this nature is easy to commit but difficult to detect and frauds such as this place a heavy burden upon all taxpayers and must be discouraged. 82Having considered all the evidence placed before me, and weighing the relevant objective and subjective factors, I am not satisfied that there are "very special circumstances" justifying some lesser order than a custodial sentence. I am of the view that no other sentence is appropriate in the circumstances. 83Each of the sentences to be imposed has been determined in accordance with Pearce v The Queen (1998) 194 CLR 610. In order to reflect totality of criminality the sentences to be imposed will be cumulative. 84In relation to the offence under s 29B of the Act, the offender is convicted and sentenced to imprisonment for three months commencing on 7 December 2011 to take into account the 2 days of pre-sentence custody. This sentence will expire on 6 March 2012. 85In relation to the offence under s 135.1(1) of the Code, the offender is convicted and sentenced to imprisonment for nine months commencing on 7 March 2012 and expiring on 6 December 2012. 86It is ordered that the offender be released at the expiration of 6 months of the aggregate sentence of 12 months imprisonment, namely on 6 June 2012, upon her entering a recognisance pursuant to s 20(1)(b) of the Act, herself in the sum of $1,000 without surety to be of good behaviour for a period of 6 months from her date of release and appear to receive sentence if called upon to do so at any time in respect of any breach within the said period. Further conditions of the recognisance are that she accept the supervision of the probation and parole service and that she obey all reasonable directions of such service. 87Susan Lee, I have imposed a sentence in all of 12 months imprisonment commencing from last Wednesday. You will not serve the whole of that period in custody. In just under 6 months you will be released on a recognisance for a period of 6 months from the date of your release subject to the conditions which I have imposed. If you fail to comply with any of the conditions imposed the recognisance release order may be revoked and you may be imprisoned for the balance of the sentence of imprisonment you have not served. Additionally, in certain circumstances an order may be made for the discharge of the recognisance or a variation of its terms. 88Pursuant to s 21B of the Act, I order that the offender make reparation to the Commonwealth in the sum of $118,352.71. The exhibits may remain on the file. I order that copies of Exhibits 3 to 7 inclusive be attached to the offender's warrant of imprisonment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2013