Wildey v Mathiasen[1999] QDC 231

[Before SKOIEN SJDC]

[Wildey v. Mathiasen]

BETWEEN:

AND:

JUDGMENT

Judgment delivered: 17 August 1999

Catchwords:

Social Security Act 1991 s.1347, Crimes Act 1914 s.17A; Sentence manifestly excessive, material facts mistakenly applied.

BETWEEN:

AND:

REASONS FOR JUDGMENT - SKOIEN S.J.D.C.

Delivered the Seventeenth day of August 1999

1. 1.
   This is an application by the appellant Wildey for leave to appeal against the severity of a sentence passed on him by C.E. Webster Esq., Stipendiary Magistrate at Beenleigh on 5 February 1999.

1. 2.
   Wildey was charged with four counts of contravening s. 1347 of the Social Security Act 1991 (which I might loosely call frauds on the social security system) by accepting unemployment benefits during four periods while he was employed. The four offences occurred over some six months within a total period of two years. The total overpayment was $3666.10 but the amount outstanding at the date of the court proceedings was $2,237.08 because the Department, having become aware of the frauds, had withheld payments totalling $1427.02 from unemployment benefits otherwise properly payable to Wildey.

1. 3.
   Wildey pleaded guilty to the four charges. The learned stipendiary magistrate ordered that he be convicted and sentenced to imprisonment for six months. It was further ordered that he be released after serving 21 days upon entering into a recognizance in the sum of $3000 on condition that he be of good behaviour for five years and that he make reparation of $2,237.08 by 1 August 1999 (that is within six months). He had actually served seven days of the sentence before being released on bail pending this appeal.

1. 4.
   He was a single man aged 24 at the date of the sentence but was aged between 20 and 22 when the offences occurred. After the commission of the first offence the Department became aware of his overpayment and wrote him a letter advising him of it. In fact two similar letters were sent to him in respect of the other offences but those two later letters were not sent to him until after all four offences had been committed.

1. 5.
   Wildey had a minor criminal history. He was convicted in April 1993 of two offences of stealing and two of false pretences, offences which occurred in October 1992 when he was 18 years old. In March 1995 and October 1997 he was convicted of possession of a dangerous drug.

1. 6.
   The subject offences were not carried out in any sophisticated way. He provided his correct name and tax file number to each of his employers so that it was inevitable that a computer match-up would reveal his offences, as proved to be the case. He co-operated with the authorities, made full admissions, and pleaded guilty. He said that he did not advise the Department each time he got a job because on each occasion it was temporary work only and he knew that on re-applying for benefits after the job ceased there would be a delay before receiving benefits, a period during which he would therefore have no income.

1. 7.
   In her submissions to the magistrate counsel for the prosecution said “..... a term of imprisonment is certainly within the range, perhaps wholly suspended”. The duty solicitor submitted for community service and a recognizance.

1. 8.
   The learned stipendiary magistrate then addressed the appellant directly at some length. The transcript of this extends over six and a half pages. I have read them carefully and regret to say that they do not reflect well on the office of a presiding magistrate. The tone is clearly hectoring and sometimes mocking. For example:

1. 9.
   It is perfectly legitimate for a judicial officer to be stern to an offender and to bring home to him the gravity of the offences and the situation in which he finds himself. However the learned stipendiary magistrate in this case in my opinion went far beyond what was appropriate. He was publicly humiliating the appellant from a position of authority.

1. 10.
   The consequence is that I am left with the distinct feeling that His Worship failed to apply a dispassionate and fair mind to the task before him that is, to decide a proper sentence. Fortunately I do not have to decide whether that is a sufficient reason to allow the appeal because in two other respects the sentencing discretion clearly miscarried.

1. 11.
   First, on two occasions in the passages quoted, the learned stipendiary magistrate misdirected himself on a relevant fact, namely, that the appellant continued to offend despite receiving three letters of warning from the department. In his reasons for judgment he again said:

1. 12.
   He clearly regarded that as very important. He described it as greatly aggravating and no doubt it would greatly aggravate the offences if they were committed despite three warning letters. But the truth is that Wildey received only one such letter while in the course of committing the offences; the other two were received later. That obviously substantially waters down the impression of an offender who is persistently thumbing his nose at lawful authority.

1. 13.
   The second matter concerns the brief adjournment to allow the appellant to try to raise the $2,237.08 to make full reparation. His Worship said, in terms, that if he paid up he would not be gaoled; if he did not pay, he would be. That course has been judicially disapproved. See R v. O'Keefe (1959) Qd.R. 395 at 400 per Stanley J; R v. Anders (unreported) C.A. 571 of 1996, 25 July 1997. What His Worship was doing was offering the appellant the opportunity to buy his way out of gaol. That approach cannot be countenanced.

1. 14.
   Those two failures to apply proper sentencing principles lead me inevitably to set aside the sentence and myself to impose a proper one.

1. 15.
   Section 17A of the Crimes Act 1914 provides that for offences of this type imprisonment should not be imposed unless the Court, after having considered all the other available sentences, is satisfied that no other sentence is appropriate in all the circumstances.

1. 16.
   The appellant is a young man who was in his early twenties when he committed these offences. The system he used made detection inevitable. The money was not taken to finance high living but because of the fact that he thought that to de-register would be likely to result in periods with no income. Regrettably one often hears of that very result occurring. He has co-operated with the authorities since he was detected. He has had his social security payments docked quite substantially to repay $1,429 of the total amount of $3,666.10. Although that was involuntary from his point of view it nevertheless reduced his available income to that extent. His criminal history, leaving aside the drug offences, is minor and relates to events occurring about seven years ago. It is noteworthy that the prosecuting counsel did not suggest that an actual gaol term was the only appropriate sentence.

1. 17.
   I cannot conclude that nothing but imprisonment is appropriate. To the contrary I consider a community service order of the type contained in s.103 of the Queensland Penalties and Sentences Act 1992 (permitted by s.20AB of the Crimes Act) is quite appropriate. I would have ordered community service for a period of 240 hours had not the appellant, most regrettably, already served seven days of his sentence of imprisonment. In those circumstances 120 hours will be sufficient.

1. 18.
   I understand that the question of the reparation order is before the Social Security Appeals Tribunal and in those circumstances I propose to leave that aspect of the matter for that tribunal.

1. 19.
   I therefore set aside the sentence of imprisonment and the recognizance. On the appellant's consenting to it, without recording a conviction, I propose to substitute a community service order for 120 hours.