Robinson v Swadling[1996] QDC 252

APPELLATE JURISDICTION

JUDGE ROBERTSON

and

BRISBANE

..DATE 16/07/96

JUDGMENT

HIS HONOUR: This is an appeal against a sentence imposed in the Brisbane Magistrates Court on 31 May 1996, by Mr Webster, Stipendiary Magistrate.

On that day the applicant pleaded guilty to seven offences which constituted breaches of the Social Services Act. The offences ranged over a period in excess of two years between 1 July 1993 and 4 October 1995. Some of the offences involved knowingly obtaining payments of social security payments and others were in relation to a Newstart Allowance for various periods, and over the two year period the applicant submitted forms which were false in that he did not declare his income. His income during this period was in the order of $400 per week.

As a consequence of his dishonesty he received $16,057 to which he was not entitled. The offences were detected by the department after information was received from a member of the public. It is not one of those cases in which the applicant himself or herself has come forward and admitted misconduct.

The Magistrate imposed one penalty; as I am informed he was entitled to do; that was a sentence of 27 months imprisonment to be released after serving nine months upon a good behaviour recognisance.

He was, at the relevant time, a man in his mid forties and he had no previous criminal convictions. He had been paying reparation to the department by a prior agreement whereby payments were made at $50 per week, and he had made payments in an amount of $1,200 up to the date of sentence. I am informed that he has continued to make those payments since his release from custody and a further $600 has been paid. The $50 per week has been increased to $100 per week.

Mr Farr, for the applicant, submits that in all the circumstances the sentence is manifestly excessive. Having regard to the authorities referred to by both counsel, Mr Boyle, as I understood his submissions conceded that the sentence as presently framed was manifestly excessive. The sentence does seem to be completely out of line with the sentences imposed in the Court of Appeal decisions referred to; namely Oag CA73 of 1993; Fenton CA264 of 1993; Wright CA211 of 1994, and Dahlin CA475 of 1993, and also out of line with the single Judge decisions to which Mr Farr referred me - 10 in number.

The Magistrate, in sentencing the applicant, found that he committed the offences to meet his own ends. This does seem to be inconsistent with the material that was placed before the Magistrate. That material indicated that just prior to the first offence being committed the applicant had separated from his second wife with whom he had had three children. He had been married previously and to the knowledge of his second wife his first wife had refused him any contact with his children because of maintenance issues. She apparently told him that if he did not pay maintenance at $100 per week he would lose contact with his children.

Although there is something in what Mr Boyle says it does appear that a significant amount of the money defrauded was used for this purpose. As a consequence of him making these payments he was living well beyond his means and it seems to me that although it was a voluntary payment and not made by order of the Court, in the peculiar circumstances to which I have referred, it was a payment that he was making out of necessity rather than for his own ends as found by the Magistrate.

The personal circumstances of the applicant apart from those to which I have referred are that he does himself have a significant health problem. He suffers from chronic obstructive airways disease, although clearly that has not prevented him from working. Another factor which is relevant is that he is living in a de facto relationship with a lady who suffers from a bipolar affective disorder, and she is extremely dependent on his company.

It is not suggested now that he has any primary responsibility for the maintenance of his children. Indeed, the material before the Magistrate indicated that since 15 February the maintenance payments have been reduced to $25 a week. However, he continues apparently to pay maintenance for his children.

Mr Farr's submission is that although he concedes a term of imprisonment between 12 and 18 months is appropriate having regard to those authorities he submits that an immediate release order is appropriate. Mr Boyle submits that the case of Fenton, to which I have referred, is the most comparable to the facts of this particular case and I agree with that submission.

Fenton was a 43 years old man with no previous convictions. It does have the different factor that he was the sole provider for his family. At first instance he had been fined for deception involving something in excess of $17,000, none of which had been repaid. The Court of Appeal indicated that the appropriate sentence would have been a sentence of 12 months with release after three months, but because it was a Director's appeal and having regard to the special circumstances that pertain in such circumstances the Court ordered that he be released forthwith upon entering into a recognisance to be of good behaviour.

Mr Boyle also referred to the matter of Wright which he conceded was more serious, but submitted that the penalty should be somewhere between the actual penalty imposed by Fenton and the sentence imposed in Wright.

The applicant served three and a half days in actual custody in a watch-house before being released upon entering into his appeal recognisance. The matter is, in my view, very finely balanced. However, in the circumstances having regard to particularly that short period of custody that he has spent and that he has continued to repay restitution and the personal circumstances to which the Magistrate did not give sufficient weight, in my view, I have come to the view that it would be appropriate to accede to the submissions made by Mr Farr on behalf of the applicant.

I therefore allow the appeal and I set aside the orders made by the Magistrate. In lieu I impose the one sentence and that is that he be sentenced to a term of imprisonment of 15 months and I order that he be immediately released upon entering into a recognisance in the sum of $3,000 to be of good behaviour for a period of three years from today's date.

...

HIS HONOUR: I order the applicant to pay reparation to the Department of Social Security in the sum of $14,257.

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APPELLATE JURISDICTION

JUDGE ROBERTSON

and

BRISBANE

..DATE 16/07/96

JUDGMENT and BENCH WARRANT

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act from a decision by Mr Webster, Stipendiary Magistrate, in the Brisbane Magistrate's Court on 8 March 1996, whereby the applicant upon his plea of guilty to three breaches of the Social Security Regulations, was sentenced to a term of imprisonment of 18 months with a recommendation that he be released after serving 11 months upon entering into a recognisance in the sum of $5, 000 to be of good behaviour for a period of five years.

Reparation in the sum of $16,625.25 was ordered. The applicant was at the time of the commission of the offences in his late thirties. He is presently 39 years of age. The offences range over a period of approximately three years with some short breaks between May of 1992 and June of 1995. He had one previous conviction for dishonesty, stealing in 1983, for which he was fined $100. It seems to me that that previous conviction is largely irrelevant to the exercise of the sentencing discretion.

The factors placed before the Magistrate indicated that the applicant had, prior to the period referred to in the charges, been addicted to illicit drugs. He had also had a short period during that period where inferentially he returned to use of heroin, but he had largely beaten his addiction to illicit drugs in accordance with a letter from the Biala Drug and Alcohol Rehabilitation Clinic.

It was submitted on his behalf that his offending conduct commenced in 1992 soon after the death of his mother when he became responsible for the care of his father. It is not suggested that he was financially responsible for his father and it is a little hard to see why it provides any explanation, particularly in mitigation, for then defrauding social security over a period of three years.

He was entitled to unemployment benefits up to the end of May 1992 and then obtained work as a casual employee and continued to receive the benefit, which continued over a three year period, apart from some short breaks. At the time of sentence, he had repaid $850, leaving the sum of $16,625.25 outstanding.

It was submitted on his behalf that he could make a bulk payment of $10,000 by way of a loan from a relative. The Magistrate, not surprisingly, asked why that had not been done in the period between his arrest and his sentence, a period of many months, and no satisfactory explanation was given. A similar submission is made today on behalf of the applicant, and Mr Wilkin was unable to advance any reason apart from saying that the matter had not been raised with the applicant.

The applicant was in Court when the matter was dealt with before Mr Webster and would have clearly heard the exchange between his counsel and the Magistrate and would have been well aware of the significance of paying such a large sum by way of reparation prior to the determination of this appeal. Mr Wilkin submits on behalf of the applicant that the sentence imposed is out of line with sentences in the Court of Appeal and single Judge sentences in the District Court for offences against either sections 29B or D of the Crimes Act.

As I understand the prosecutor, Mr Boyle's submission, he concedes that the sentence, particularly as it relates to the recommendation, is out of line. His submission is that the most relevant authority is the matter of Fenton, which is an unreported judgment of the Court of Appeal, judgment delivered on 18 October 1993, CA number 264 of 1993. Fenton was a 43 year old man without prior convictions. He had co-operated fully, as did the applicant in this case. However, there were distinguishing features, in my view. His reason for committing the offences was because of financial difficulties which had led to him being in fear of losing his home.

It was also significant that he was the sole provider of his family, a wife and two children. There is no such mitigating factor in this particular case. Mr Wilkin properly points to cases such as Dahlen, CA number 475 of 1993 in which the sum defrauded was $39,000 and in which the appeal was from a decision of a District Court Judge for conviction for an indictable offence. A penalty of six months with a bond of two months is at least authority for the proposition that the recommendation here was way out of line.

Mr Wilkin concedes properly that there were exceptional circumstances in Dahlen such as her family commitments and health problems which are absent here. Fenton, of course, was an appeal against a sentence imposed for similar offences to the offences to which the applicant pleaded guilty in this case. The applicant has spent five days less than a month in custody, including five days in the watch-house.

In all the circumstances, it seems to me that the sentence imposed was manifestly excessive, both in relation to the head sentence and the recommendation. However, having regard to the principles stated in all the cases, particularly the Court of Appeal decisions, about the need for general deterrence, the prevalence of these offences and the difficulty of detecting them, I think the appropriate sentence should involve some period in custody.

I therefore allow the appeal and I set aside the order made by the Magistrate. In lieu, I impose the one penalty and that is that he be sentenced to imprisonment for 12 months. I would have ordinarily imposed an order that he be released after serving three months, but because he has served one month, I will reduce that to two months and I order that he be released after serving two months upon entering into a recognisance in the sum of $3,000 to be of good behaviour for a period of three years.

I make an order that he pay reparation to the Department of Social Security in the sum of $16,625.25.

...

HIS HONOUR: I make the one order that he be imprisoned for 12 months, and that he be released after serving three months upon entering into a recognisance in the sum of $3,000 to be of good behaviour for three years, and I order that he make reparation in the sum of $16, 625.25 to the Department of Social Security.

I order that a warrant issue pursuant to section 231(3) of Justices Act for the arrest of the appellant and I direct that such warrant lie in the registry for a period of seven days.

...

HIS HONOUR: I indicate that imposing the order, it is my intention that the time that the appellant has already spent in custody between 8 March and 4 April 1996 be deemed to be time already served in relation to the sentence that I have imposed today. That should automatically follow as a matter of law any way.

...

HIS HONOUR: I will not make an order for costs in this case.