Lammon v Emery[2010] QDC 123

[2010] QDC 123

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 406 of 2009

SOUTHPORT

DATE 05/03/2010

ORDER

Justices Act 1886 s 222

Crimes Act 1914 (Cth) s 17A

Criminal Code (Cth) s 135.2

Appeal against sentence - original sentence not manifestly excessive - magistrate given an erroneous account of the facts which overstated the dimensions of the offending - Magistrate did not state why actual imprisonment was the only appropriate sentence - appeal allowed on 12 months' imprisonment order remains with an intensive correction order, rather than release after one month in custody

HIS HONOUR:  This is an appeal under section 222 of the Justices Act 1886 by Mr Lammon, who complains that a Magistrate’s sentence imposed on the 4th of August 2009 for an offence of obtaining an advantage under section 135.2 of the Commonwealth Criminal Code was manifestly excessive.

It is difficult in my opinion to categorise the sentence in that way.  It represents about half of what the Prosecutor had asked for.  It was a six month sentence to be ameliorated by a release order after one month. 

For a period of 44 and a-half fortnights, the appellant received benefits which he was not entitled to.  He had commenced to receive them on the basis of a serious heart related medical opinion (of a specialist brought in by Centrelink) when after his treatment, medical treatment was that it might take up to two years for him to retrieve any ability to return to ordinary working life.  Matters developed favourably in the medical area to the extent that the appellant was able to obtain employment which, whatever it was earlier, came to be full time employment as a groundsman at Bond University.

He was reminded periodically by communications from the Department of his obligation to inform the authorities of the favourable change in his working and financial circumstances but failed to do that.

In consequence, he continued to receive payments for the period mentioned when for some 33 and a-half periods he was entitled to only partial benefits and for the other 11 weeks he was entitled to none.

Before the Magistrate, the failure to inform the authorities was attributed to the appellant’s uncertainty as to whether the employment which he found would last.  It was accepted, and I think had to be, that at some point the appellant became guilty of “fraud”.  When data matching indicated there had been an offence, he accepted the situation and cooperated with the authorities, pleading guilty early.

He is a single man in his mid-thirties and cannot demonstrate any justification for his receipt of benefits which were no longer available under the law to persons in his situation.  I agree with the Magistrate that the explanation has to be characterised as greed, at least from the time when it was tolerably clear the new employment would endure, as it has done.

Appeal bail was applied for and granted.  At that stage, additional evidence was placed before the Court in respect of the appellant’s medical condition that essentially corroborated medical information which had been placed before the sentencing Magistrate, for example, as to the considerable amount of medications which are required.  Dr Singh, in the report provided for the bail application indicated that for a blood related condition for which Warfarin is taken, regular monitoring is needed.  Ms Gibbs has obtained instructions that that monitoring would be available in prison.

There was also used on the bail application a letter from the employer indicating that the appellant’s employment was in jeopardy if, through being in custody, he could not attend work.

Mr McNab seeks to have new evidence placed before the Court on the appeal.  It is one and the same as the evidence used on the bail application which persuaded the Magistrate to grant appeal bail given the inevitable delay before the appeal could be heard.  Ms Gibbs, who has very fairly presented the appeal on behalf of the DPP, raised no objection to the use of this “fresh evidence” on the appeal.

Mr McNab, from the Bar table, has made assertions that the jeopardy to employment is still a factor, indeed, perhaps beefing up the risk.  He has also told the Court that in the last few months his client has formed a relationship with a partner‑‑‑‑‑

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HIS HONOUR:  ‑‑‑‑‑who is three months pregnant with the appellant’s child.  Given that what’s an issue is some few weeks custody, those family circumstances are not as dramatic as those which have led to successful appeals against the custodial component of a sentence in circumstances broadly similar to the present, for example, Rosales v Carstens, Townsville, 6th of September 2005, Chief Judge Wolfe; and Anderson v Commonwealth DPP Appeal 4060 [2005] 23rd May 2006, Judge Brabazon.  The number of Rosales v Carstens is D389 of 2004.

There is a “post sentence custody certificate” received as Exhibit 1 which indicates that Mr Lammon has spent eight days in custody before obtaining the benefit of the appeal bail mentioned.  The appeal thus comes to about whether an additional three weeks or a little more of custody must be served.  The Court is usually averse to disrupting people’s lives by repeated short stints in custody, but perhaps it could be said Mr Lammon by a successful bail application got himself into this situation. 

In Luong v Oliver, D31 of 2001, Beenleigh, 8th of October 2004, Judge Rackemann dealt with an appeal similar to the present one where the “fraud amount” was $16,702.96, more than $3,000 of which had been repaid at the time of sentence.  Luong had a partial entitlement to 20 fortnights but no entitlement for 34 fortnights.  An appeal against an eight month sentence with a release order after six weeks was dismissed.  Luong had served one week’s custody before the matter came before his Honour.  His argument was that he was a business person and that staff may have to be laid off if he was imprisoned.  He was a single man of 27 with no prior convictions.

In that last respect Mr Lammon is not so fortunate.  However, his troubles with the law which include offences of dishonesty are old and the Magistrate indicated that he placed no weight on them.

Another instance of an unsuccessful appeal with similarities to the present is Groundwater v Arthur, Townsville Appeal 21 of 2008, 7th of March 2008, Judge O'Brien.  That involved an offender in his fifties sentenced for two offences under section 135.  The amount in issue exceeded $30,000.  There was a 12 month sentence of imprisonment with a recognisance release order after four months, conditional on Groundwater being of good behaviour for three years.  The appeal Judge said that no appeallable error had been demonstrated, that the sentence imposed was within the appropriate sentencing range.

The sums in the appellant’s case are total overpayment attributable to the appellant’s misconduct of $21,994.26, $2,221.79 having been repaid, at the date of sentence.  The Magistrate ordered payment of the balance.  The Court hears that payment arrangements made with the employer have continued at the rate of $300 per month.

During the period of the charge, the gross income received from Bond University was close to $70,000.  If the circumstances were limited to those discussed above I do not think this appeal could be successful.  Whatever sentence I might have imposed at first instance, the Magistrate’s comes within a proper sentencing range.

I think the appeal can be dealt with on another basis of the sentencing discretion having miscarried because of a factual error which may be treated as of some significance.  There is  also an error or omission so far as the processes envisaged by the legislation are concerned coming into play.

Ms Gibbs has fairly placed before the Court that when his Honour was given relevant numbers, a mistake was made, his Honour being told that for 33 and a-half weeks Mr Lammon was entitled to no benefits, that he was entitled to partial benefits for 11 weeks.  That information allocated the wrong periods of time to the relevant circumstances.

Mr McNab relies on the Magistrate’s failure in his reasons which are careful reasons of some length, to state as section 17A of the Crimes Act 1914 requires, that a sentence of imprisonment was the only appropriate sentence in the circumstances.  The section itself envisages that judicial officers might slip up, and in subsection (3) provides that the failure of the Court to comply with the provisions of this section does not invalidate any sentence.

I do not regard that as excluding an Appeal Court’s entitlement to interfere with a sentence on the basis that the proceeding subsections were not complied with.  One only has to read the subsections (1) and (2) again to understand how seriously the legislature takes the notion that imprisonment ought to be a last resort.

In Luong, Judge Rackemann found himself able to overlook a similar technical deficiency, being of the view that it was implicit that the Magistrate had considered everything which she had to.  That is not quite so clear to me here.  At the end of submissions by Mr Parker for Mr Lammon, there was a submission to the Magistrate that there ought to be taken into account various personal circumstances “if your Honour is indeed thinking of a term of imprisonment,” which got the response from the Bench, “I am.”

As Ms Gibbs says, the Magistrate appears to have been cognisant of the employment of the appellant and the implicit threat which incarceration might pose to it.  He had some awareness of the medical circumstances as well.

As I read the reasons, I fail to detect an explanation for why imprisonment, which his Honour said he was considering, was indeed the only option.  The factual error in the circumstances as placed before the Magistrates Court may have been significant in circumstances where the relevant “fraud” was regarded as arising at some uncertain point during the whole course of events.  It is on that basis that I think the sentencing discretion has the appearance of being exercised on an incorrect basis, so that the sentence may be set aside and the sentencing exercise approached afresh in this Court. 

Something similar happened in Anderson where Judge Brabazon held, as noted in the helpful schedule of comparable sentences handed up, that the sentence imposed was not manifestly excessive.  He thought that the Magistrate had fallen into error by not taking sufficient account of mitigating factors, presumably on the basis that there was no express reference to them in the reasons.

The sentence of eight months imprisonment with six weeks to be served was set aside and an eight month intensive correction order was substituted.  Five days had been served before appeal bail was granted in that case.

The eight days in custody which Mr Lammon has served ought to have made it clear to him what the consequences of social security fraud and like offending may be.  One would hope that that’s an outcome which might serve to cause others in the community who hear of it to think seriously themselves.

The prospects of restitution to the Commonwealth are obviously enhanced if Mr Lammon keeps his employment.  As occurred in Anderson I think the Magistrate’s order ought to be set aside and a sentence imposed of one year’s imprisonment which is accompanied by an intensive correction order.  Mr Lammon is present and has consented to the making of such an order.  He has had one in the past for a driving offence and apparently complied with it.

There may be some room for criticism of the learned Magistrate’s approach in that he observed that a previous intensive correction order did not appear to have taught Mr Lammon the lesson that he ought not to break the law again.

I will allow to the close of business today to report to the Burleigh Heads Community Corrections Office for purposes of that order.

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HIS HONOUR:  The 12 months imprisonment remains, the reparation order remains.  And the order for costs of Court remains.