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Annette v Services Australia

Annette v Services Australia

Case [2022] SASC 145 6 December 2022

Fraudulently or Deceptively Obtaining Money, Valuable, Financial Benefit or Advantage

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Supreme Court of South Australia
(Magistrates Appeal: Criminal)
ANNETTE v SERVICES AUSTRALIA
[2022] SASC 145
Judgment of the Honourable Justice Kimber
6 December 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - SENTENCE
The appellant appeals against sentences imposed by a Magistrate. The appellant entered pleas of guilty to one count of dishonestly obtaining a financial advantage from the Commonwealth by deception contrary to s 134.2(1) of the Criminal Code 1995 (Cth) (the Code) and eight counts of dishonestly obtaining a financial benefit for another from the Commonwealth contrary to s 135.2(2) of the Code. The offending involved applications by the appellant to the Department for Human Services for the Australian Government Disaster Recovery Payment (the Payment), being a one-off payment in the amount of $1000. The offence contrary to s 134.2(1) involved the appellant making an application for $1000 for himself, falsely claiming that he lived at a residence which had been affected by flooding in Annandale, Townsville. The eight counts contrary to s 135.2(2) involved the appellant then making similar applications each in the amount of $1000 on behalf of eight others. The appellant had prior convictions was homeless and had a drug habit. At the time of sentence, the appellant was employed and showing signs of rehabilitation.
After reductions of one third for the pleas of guilty, the Magistrate imposed a sentence of six months for the offence contrary to s 134.2(1) and a sentence of eight months for the eight offences contrary to s 135.2(2). The two sentences were made cumulative, resulting in an effective total head sentence of 14 months. The Magistrate ordered the appellant be released after seven months on recognizance in the amount of $500, on condition the appellant be of good behaviour for two years.
The appellant appealed on grounds of manifest excess.
Held, per Kimber J, allowing the appeal:
1.Notwithstanding the importance of general and personal deterrence for offences of this type, the two sentences were both manifestly excessive.

2. The sentences imposed by the Magistrate are set aside.
3.Taking into account the appellant had served two months and 11 days in custody before release on bail pending the appeal, the appellant is re-sentenced to a single sentence of six months, 19 days and is released on a recognizance release order for two years in the amount of $500 with a condition that he be of good behaviour for two years.

Crimes Act 1914 (Cth) s 16A; Criminal Code Act 1995 (Cth) ss 134.2(1), 135.2(2), referred to.
House v The King (1933) 48 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Kentwell v The Queen Lowndes v The Queen (1999) 195 CLR 665; R v Wilton (1981) 28 SASR 362; Hili v The Queen (2010) 242 CLR 520; R v Cameron and Simounds (1993)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Annette v Services Australia [2022] SASC 145
Case: [2022] SASC 145
Decision Date: 6 December 2022

CaseChat Overview and Summary

The case of Annette v Services Australia involves the defendant appealing a decision made by Magistrates Court of South Australia, which was subsequently reviewed by the Supreme Court. Annette was found guilty of obtaining money, a valuable financial benefit, or advantage by fraudulent or deceptive means. The dispute centres on whether the evidence was sufficient to support the Magistrates Court's finding of guilt and the appropriateness of the sentence imposed.

The legal issues before the Supreme Court were twofold: firstly, whether the Magistrates Court erred in its findings of fact and thereby made an error of law; and secondly, whether the sentence imposed was manifestly excessive or inappropriate. The court needed to examine the evidence presented, the interpretation of statutory provisions, and the principles of sentencing in relation to fraud offences.

The Supreme Court found that the Magistrates Court had correctly interpreted the relevant statutory provisions and applied them to the evidence presented. The court held that the evidence was sufficient to support the finding that Annette had engaged in fraudulent or deceptive conduct to obtain a financial benefit. In relation to the sentence, the Supreme Court held that the Magistrates Court had appropriately considered the aggravating and mitigating factors and that the sentence imposed was neither manifestly excessive nor inappropriate. The court noted that Annette's conduct was deliberate and involved a significant degree of planning and deceit, justifying a custodial sentence.

As a result of the Supreme Court's decision, the appeal was dismissed, and the original decision of the Magistrates Court was upheld. The final orders were that the conviction and sentence imposed by the Magistrates Court remain in place, and Annette's appeal is unsuccessful.

Orders