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R v Waters; Ex parte CDPP [2023] QCA 131

The offender was sentenced following a plea of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Commonwealth Criminal Code. Original sentence imposed 2 years and 9 months imprisonment to be released immediately on recognizance of $1,000 to be of good behaviour for 2 years. The Crown appealed on the grounds that the sentence was manifestly inadequate and the sentencing judge erred in finding that deterrence was moderated by the offender’s mental condition.

Manifest Inadequacy: Offender submitted 355 false Medicare claims causing $178,548.70 of taxpayers’ money to be paid to her. The cases suggest that, in the absence of exceptional circumstances, for offending on the scale committed by offender a well-moderated sentence on a guilty plea would ordinarily be at least 3 years imprisonment with some material portion of it to be served in actual custody. The circumstances of the case did not place it into that exceptional realm. Considering offender’s mental condition excluding the impugned psychologist report, tt was within the range of a sound exercise of the sentencing jurisdiction to impose a somewhat more lenient sentence than ordinary total period of imprisonment and set the period to be served in actual custody at less than 50% of the total. However, that period still needed to be of sufficient material substance as not to defeat the importance of general deterrence.

Mental Condition: Psychologist’s sentencing report was one which, with limited foundation, gave vague or heavily qualified opinions about offender’s psychological state and its relevance to the moral culpability of offender. That offender ‘believes [they have]’ post-traumatic stress disorder is of no weight. There is no indication that their mental state would make imprisonment more burdensome for them than for an ordinary person. Speculative observations made in the report fall well short of purporting to be an authoritative diagnosis. Nowhere in the report does there appear any identification or explanation of a mitigating causal connection between offender’s psychological state and their persistence in offending. The relevant consideration is not the psychological label. It is whether offender’s mental state as a matter of fact involved or involves such an impairment of mental functioning as to materially reduce moral culpability or the claims of deterrence or the appropriate range of sentencing options. The sentencing judge’s reasoning that offending was persisted with in a state of downward spiralling mental illness and was not open on the evidence or logically open as moderating the claims of general deterrence.

The Court exercised its residual discretion to not interfere with the sentence despite the appeal grounds having succeeded. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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