Thorne v Francis St De Landelles
[1995] QDC 52
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- Thorne v Francis St De Landelles[1995] QDC 52
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Thorne v Francis St De Landelles[1995] QDC 52
Thorne v Francis St De Landelles[1995] QDC 52
DISTRICT COURT | No 149 of 1994 |
APPELLATE JURISDICTION
JUDGE ROBIN QC
JOSEPH ANDREW THORNE | Appellant |
and
FRANCIS ST DE LANDELLES | Respondent |
BRISBANE
DATE 08/02/95
ORDER
HIS HONOUR: I am taking the unusual step of adjourning this appeal although it has been substantially argued under section 224 of the Justices Act. The circumstances are difficult.
Mr Thorne has been convicted of two offences under sections 1350 and 1347 of the Social Security Act 1991. As so often happens, he started out as a person entitled to receive benefits on the basis that he was unemployed. He obtained employment on a casual basis and then on a full-time basis, but quite dishonestly submitted fortnightly returns which declared he was still unemployed.
As the prosecution side say, it is a particularly serious aspect of Mr Thorne's conduct that after the authorities had begun to investigate the matters constituting the first offence which continued over nine months, and discussed them with him, he committed a further offence which I take it subsumes a number of instances of dishonesty into one offence which extended over two and a half months or a little more.
Payments made to him to which he was not entitled are of the order of $14,000. The Magistrate took the view, contrary to Mr Thorne's solicitor's submission, that he was not remorseful, relying on the circumstances of the second offence. At the time of the offences, Mr Thorne appears to have earned an average income which does not of course mean that things were easy for him and his family of a wife and three children.
Nonetheless, the community is entitled to expect that he would honestly complete the forms the Department of Social Security required from time to time to enable it to assess whether to continue paying benefits. The offences appear to have sprung from greed rather than desperation.
The Court of Appeal has said many times that honesty of applicants for social security being so important, the deterrent aspect of sentencing is very significant in cases like this. It can be understood why the Magistrate made an order that Mr Thorne be imprisoned for six months with a provision for release after three months on his entering into a recognisance on defined conditions.
There is a technical error in what the Magistrate did in making a single order. He had two complaints before him and ought technically to have repeated the order as a separate one on each complaint. That is something which will have to be attended to when the ultimate fate of this appeal is known.
The prosecutor has consented to the presentation of new material on the hearing of this appeal which provides the Court with the sad information that Mr Thorne suffers from Hepatitis C and that Mrs Thorne's current pregnancy, which had been confirmed before the Magistrate, is going to result in the birth of a child incapable of living for long.
Her earlier pregnancies have caused problems of their own and it appears to me important that Mrs Thorne have the support of her husband in the months ahead to give her and the family the best chance of pulling through a difficult period. She has done what she can to assist Mr Thorne in his predicament at a cost to herself and the children by consenting to arrangements whereby the Department of Social Security withholds each fortnight $78 from the family allowance payable to her.
I would treat this as a concession she has made which she is not obliged to make. The aggregate amount which has been withheld to date I am told is $1,439.92 which is rather more than 10 per cent of the sum in question.
Ms Holmes has calculated that at that rate it will take 162 fortnights or a little over six years for the repayment in full. In these proceedings, she has announced that the fortnightly payments which, one way or another, the Department could get may be increased to $95. It has been made clear that is to be understood as a $17 a fortnight increase over the concession Mrs Thorne has been making.
The signals being transmitted to courts of first instance by the Court of Appeal are in a sense conflicting - more accurately, I, with my perhaps limited understanding, find them so. Ms Holmes relies heavily on the matter of John Alan Oag, Criminal Appeal 73 of 1993 in which the Court said:
“The comparative cases referred to do not make a custodial sentence essential and due weight must be given to the applicant's personal circumstances.”
That was a case in which Mr Oag had been sentenced by the Magistrate to six months more imprisonment than the law allowed. In Oag, the outcome was a nine-month sentence with a provision for his release forthwith on giving security by recognisance on certain conditions. The Court of Appeal recorded that he had been incarcerated for four days without stating whether this fact influenced the final outcome.
In the matter of Andrew Robert Fenton, Criminal Appeal 264 of 1993, the Commonwealth Director of Public Prosecutions' appeal succeeded and a similar order providing for 12 months' imprisonment was made. The Court of Appeal said at page 4 of the reasons that the sentencing Magistrate should have imposed a term of imprisonment in this case although it would have been appropriate that the respondent be released upon his giving security to be of good behaviour after a relatively brief period. That was not the outcome because the appeal was one brought by the Director after Fenton had been released into the community by the sentencing Magistrate and allowed to continue uninterrupted with his domestic and business affairs. (Mr Thorne is in that situation for the moment only because he is on bail.)
It is not the case that appeals by the Director do not result in actual incarceration of social security offenders. See the matter of Maree Annette Dahlin, Criminal Appeal 474 of 1993 in which a 49 year old “cleanskin” woman with dependent teenage children was convicted of the different offence of defrauding the Commonwealth and it was said “a custodial sentence was required”. This is identical in its outcome with an offender's appeal of Barbara Anne Morgan, Criminal Appeal 315 of 1993. Morgan was 23 years of age, with three young children and a de facto husband who provided no support; she had no previous convictions. At page 3 of the reasons, the Court of Appeal said, in dismissing her appeal:
“To interfere with the sentence imposed here, it would be necessary to hold that if a young woman, having no previous convictions, and in genuine need of funds, fraudulently obtains a substantial sum in social security payments, a short term of imprisonment is not a sentencing option.”
Morgan's convictions (which netted her $33,638.90) arose under the Social Security Act. This appeal, Ms Holmes submits, is (by reason of the new material let in by consent) a rehearing or ought to be treated as one by me under s 223 of the Justices Act so that the considerations are different; she says, essentially, that the Court of Appeal decisions show the Magistrate was demonstrably wrong in not accepting that a non-custodial outcome was within the sentencing range.
Other recent cases in the Court of Appeal I find helpful are Timothy Stewart Wright, Criminal Appeal 211 of 1994 and Lorance Henry Sellars, 165 of 1988. Ms Holmes has relied heavily on Yvonne Janice Hope, Appeal 70 of 1985. What was the other one, Ms Holmes?
MS HOLMES: Gladys May White, Your Honour.
HIS HONOUR: Yes. Have you got that name? Gladys May White, is it?
MS HOLMES: Yes, Your Honour.
HIS HONOUR: Can you tell me the number?
MS HOLMES: I'm sorry?
MR ALLEN: 411 of 1986.
HIS HONOUR: 411 of 1986. There, the Court said (at p 6 of the reasons):
“Offences such as this ought ordinarily to attract a custodial sentence ... clearly a sentence involving a short period of imprisonment could not have been attacked on the ground that it was manifestly excessive, but that does not necessarily mean that a non-custodial sentence was inappropriate or wrong.”
I think it is a close question whether this is a case in which within the meaning of section 17A of the Crimes Act “no other sentence is appropriate in all the circumstances of the case” than imprisonment. The answer depends very much on application of a policy with the particular circumstances of the particular case including the “personal circumstances” of the offender the matters to be kept to the fore in the mind of the Court. The answer I do not propose to announce today. Even if the Magistrate is right, it may be that some adjustment of his order is appropriate.
One topic raised was whether it was open to the Court to impose imprisonment with release on conditions requiring payment of compensation as directed by the Court or a community correctional officer, with a possibility of imprisonment (on resentencing or otherwise) in some way being brought about in default. Mr Allen denied the possibility, referring to s 20(2A) of the Crimes Act. However, it may be the better view that this provision does not apply to an order under s 20(1)(b), which is to be distinguished from one under s 20(1)(a) although described as involving “security of the kind referred to in paragraph (a)”. It may be that resentencing could be open under s 20A(5)(b) or (c), about which no submissions were made.
I propose to adjourn this appeal to 9.30 a.m. on 1 December 1995. I will expect on that occasion some reliable information as to how things stand then, in particular, with respect to progress in restitution being made to the Social Security Department and Mr Thorne's employment and financial position. I indicate to the parties that if circumstances are thought to warrant it, an application can be made to me to bring the matter on at an earlier time.
It is regrettable from some points of view to find myself temporising as I am, but it seems to me particularly important that Mr Thorne be with his family for the immediate future. Although the prosecutor has referred to the undesirability of him being at large, he has no previous convictions, and there is no reason to think he is a risk to anyone in the community other than the Department which is presumably vigilant now in his case; one of the points Ms Holmes has made on his behalf is that he has taken no steps to conceal his identity in his offending.
It may be that over the next ten months or so sufficient progress is made with restitution to make Mr Allen feel more comfortable. If Mr Thorne is gaoled, we can forget about restitution. Mr Thorne will not be able to pay and it would be quite unrealistic to expect Mrs Thorne to continue to persist in her attitude to the family allowance. I doubt that her financial circumstances would leave that as a possibility. It is also notorious that imprisonment of offenders is very costly to the community; as I have observed during the hearing, deterrence is purchased by the community at a very high price.
I have indicated the order that I make for today.