de Landelles v Cole[1997] QDC 53

APPELLATE JURISDICTION

JUDGE BOYCE QC

and

BRISBANE

DATE 02/04/97

JUDGMENT

HIS HONOUR: This is an appeal under section 222 of the Justices Act 1886. I propose to give reasons for judgment extempore. I reserve the right to revise those reasons for judgment in due course.

The appellant was dealt with in the Magistrates Court in January 1997. He pleaded guilty to 10 offences under the Social Security Act 1947. He was sentenced to 24 months' imprisonment. He was to be released after serving 12 months' imprisonment, conditional upon his entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of 36 months.

The offences involved obtaining various social security benefits when they were not payable. The offences took place over a period of some four and a half years from September 1985 up to May 1990. There were short intervals between some of these charges. However, the offences were committed during intermittent periods totalling 48 months in a period of 56 months.

The sum of money obtained by the appellant from the department to which he was not entitled was a substantial sum, namely, $35,297.32. There has been restitution of a modest sum, namely, $1,367.27.

The appellant was aged 52 years. He had no prior convictions for offences of dishonesty. I should say that there was a separate order made that the defendant make reparation to the Department of Social Security for the outstanding balance.

The sentence is said to be manifestly excessive by the appellant. It was urged on behalf of the appellant before the learned Magistrate that he had significant health problems. These were described as follows. He was said to have had epilepsy for most of his life. He was said to have had a nerve injury on the ulna. He is said to have disc degeneration with spurs on each of his discs.

There are matters of concern in the commission of these offences. Seven of the 10 offences involve the deliberate submission of false information to the department every fortnight. The offences involved a premeditated course of conduct over an extended period of time. There was a substantial sum of money obtained by the appellant to which he was not entitled.

The learned Magistrate took the view that a need for general deterrence was of great importance in this type of case. There are various Court of Appeal decisions to which the learned Magistrate referred. In the Court of Appeal decision of The Queen v. Oag (Court of Appeal number 73 of 1993) the Court observed “the major factor in favour of a custodial sentence is the need for deterrence especially since the effective operation of the social security system is largely dependent upon the honesty of those who benefit. The Court was told on behalf of the respondent that offences such as those committed by the applicant are prevalent and are difficult and costly to detect.”

I should note that one of the matters relied upon by the appellant is that there was a considerable delay in the prosecution of these offences. It will be seen that the last offence occurred in May of 1990. The learned Magistrate was told that information about these matters was supplied to the Department by a member of the public in 1993.

The appellant was notified of the overpayment by the Department on 7 June 1994. He commenced repayments in January 1995. He was interviewed in July of 1996 and did cooperate. There are matters that must go in mitigation in the case. The appellant did cooperate with investigators when he was questioned about the matter. He did enter a plea of guilty at an early stage.

There has undoubtedly been some delay by the Department in bringing a prosecution, however it is obvious from the large number of these matters coming before the Courts that the offence is a prevalent one. Further, as I have already noted, the offences occurred over an extended period of time, some four years and eight months and the amount obtained by the appellant was quite substantial.

In the case of The Queen v. Holdsworth (Court of Appeal number 94 of 1993 in the joint Judgment of Mr Justice Pincus and Mr Justice Thomas), it was observed:

In all the circumstances it seems to me that a substantial custodial sentence was required in this case. I consider that the sentence imposed was within the exercise of a sound discretion as to the appropriate sentence. Accordingly, I dismiss the appeal.