Annette v Services Australia - [2022] SASC 145

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) 171 LSJS 305; Kovacevic v Mills (2000) 76 SASR 404; Panella v Wanganeen [2018] SASC 100; Arkrie v Director of Public Prosecutions (Cth) [2012] WASC 200; Esplin v Raffan [2008] WASC 42; Harding v Moreland 2006] WASC 8; Emms v Barr [2008] TASSC 49; Nolan v Jarvis [2006] TASSC 64, applied.
R v Wilton (1981) 28 SASR 362; Hili v The Queen (2010) 242 CLR 520; R v Cameron and Simounds (1993) 171 LSJS 305; Kovacevic v Mills (2000) 76 SASR 404; Panella v Wanganeen [2018] SASC 100; Arkrie v Director of Public Prosecutions (Cth) [2012] WASC 200; Esplin v Raffan [2008] WASC 42; Harding v Moreland [2006] WASC 8; Emms v Barr [2008] TASSC 49; Nolan v Jarvis [2006] TASSC 64, considered.

ANNETTE v SERVICES AUSTRALIA
[2022] SASC 145
Magistrates Appeal: Criminal
KIMBER J:
Background

This is an appeal against a sentence imposed by a Magistrate. The appellant pleaded 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.
For the one count contrary to s 134.2(1), the maximum penalty was imprisonment for 10 years. After a reduction of one third for the plea of guilty, the Magistrate imposed a sentence of six months. For each of the eight counts contrary to s 135.2(2), the maximum penalty was imprisonment for 12 months. After a reduction of one third for the pleas of guilty, the Magistrate imposed a single sentence of eight months. The Magistrate made the second sentence cumulative on the first, resulting an effective total head sentence of 14 months commencing on 18 May 2022. The Magistrate ordered the appellant be released after seven months on recognizance in the amount of $500, and on condition the appellant be of good behaviour for two years.
I allow the appeal and re-sentence the appellant. My reasons follow.
The Notice of Appeal
While the Notice of Appeal has a single ground of manifest excess, the submissions of the appellant made more than just a single complaint.
As the appeal was argued, the following complaints are made:
1.The two separate sentences were each manifestly excessive;
2.The total effective head sentence of 14 months was manifestly excessive; and
3.The order that seven months imprisonment be served immediately was manifestly excessive.
The conduct the subject of the offences
The conduct the subject of the offending is not disputed.
The offences concerned applications to the Department of Human Services (DHS) for the Australian Government Disaster Recovery Payment (the Payment), being a one-off payment of $1000. That scheme was designed to provide immediate, short term financial relief for Australian residents adversely affected by a designated disaster. Applications for the Payment were able to be made by telephoning DHS or applying online and answering questions to determine eligibility.
On 3 February 2019 the federal government determined that flooding in the far north of Queensland, including parts of Townsville, was a major disaster and that if a person’s primary place of residence had been destroyed or sustained major damage, they may be eligible for the Payment. The offence contrary to s 134.2(1) involved conduct on 7 February 2019. On that day the appellant telephoned DHS, provided his name and stated that he lived at an address in Annandale, Townsville which had been flooded. Shortly after, DHS transferred into the bank account of the appellant the amount of $1000. The eight offences contrary to s 135.2(2) involved conduct between 25 February 2019 and 24 April 2019. On eight separate occasions the appellant repeated the process above but instead used names other than his own and different address in Annandale, Townsville.
Discussion
Before dealing with the specific complaints made by the appellant, I will make some observations of a general nature.
Manifest Excess
As set out above, the submissions of the appellant involve complaints of manifest excess.
The principles with respect to manifest excess are well known. A sentence is only manifestly excessive if the sentence is plainly unjust.[1] The sentence must be ‘outside the permissible range of sentences for the offender and the offence’.[2] A sentence must not be interfered with on the basis that an appellate Court would have given lesser sentence.[3]
[1]     House v The King (1933) 48 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370-371.
[2]     Kentwell v The Queen (2014) 252 CLR 601, [35].
[3]     House v The King (1933) 48 CLR 499, 505. See also Lowndes v The Queen (1999) 195 CLR 665, 671; R v Wilton (1981) 28 SASR 362, 263.
Approach to Commonwealth Sentencing
As all offences were against Commonwealth law, sentencing was governed by the Crimes Act 1914 (Cth) (the Crimes Act). The Magistrate was obliged to impose a sentence or make an order of a severity which was appropriate in all the circumstances of the offence.[4] The Magistrate was required to have regard to the matters in s 16A(2) of the Crimes Act known to the Court and any other matters relevant to the sentencing task.[5] That requirement applies in equal measure in determining the minimum period of immediate imprisonment.[6]
[4] Crimes Act 1914 (Cth) s 16A(1).
[5] Hili v The Queen (2010) 242 CLR 520, [24].
[6] Ibid, [40]-[41].
Sentencing for fraud against the Commonwealth
The appellant dishonestly accessed funds made available to support persons in need. The appellant did not commit a fraud against the social security system, but the offences may be regarded as being broadly similar to those commonly committed by way of false claim for social security payments. Abuse of schemes which provide payments like the ones made available in this case risks jeopardising such schemes and the welfare of those who might benefit from them in the future. Sentencing Courts have a responsibility to protect such schemes by imposing punishments which are likely to act as a deterrent.[7]
[7] R v Cameron and Simounds (1993) 171 LSJS 305, 307.
In Kovacevic v Mills, the Court set out the sentencing principles applicable to cases of social security fraud:[8]
… [it is] the responsibility of the courts to protect the integrity of the social security system … [there is] the need for a firm approach to offences involving sustained and deliberate fraud. In particular, the Court must do what it can to deter such offending. Offences of the type in question are common. The fact that such offending occurs over a longish period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. And it is true that sustained fraud against the social security system tends to undermine it, and because of its widespread and insidious nature, to impose substantial costs upon the community.
…
In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.
[8] Kovacevic v Mills (2000) 76 SASR 404, [37], [43].
Some aspects of the personal circumstances of the appellant
At the time of the offences, the appellant was 26 years of age, homeless, using drugs and in debt.
The appellant was to be sentenced only for the nine offences before the Magistrate. Nonetheless, the appellant had been convicted of other offending and was to be sentenced against the background of his record. In 2015, when he was 22 years of age, the appellant received a suspended sentence for driving while disqualified. In 2016 and 2017, the appellant had imposed a series of convictions for breaching bail and breaching intervention orders. In 2017, the appellant committed offences of aggravated assault, breach of bail and breach of intervention orders resulting in a sentence of imprisonment of three months. After committing the nine offences the subject of this appeal, the appellant was sentenced to imprisonment for two months for hindering police and carrying offensive weapons and was dealt with for breaching a bond imposed in December 2019.
At the time of sentence, the appellant was 29 years of age. The appellant was showing signs of rehabilitation. He had no convictions since 2019. The appellant had been employed at different times since 2020 and was working as a brick layer at the time of sentence. The appellant was sharing a house with others at the time of sentence, having been homeless at the time of offending. The Magistrate appropriately described the absence of offending for more than two years as providing hope the appellant would obey the law in the future.
Salient features of the offending conduct
The Magistrate described the offending as ‘motivated by need not greed’.[9] The offences involved considered conduct which took advantage of a scheme established to assist those who had experienced loss or damage to their property. In some respects, the period over which the offending took place (two and a half months) is a relatively limited time. Nonetheless, that must not obscure that there were nine separate offences. While the offences were not sophisticated, the eight offences contrary to s 135.2(2) involved planning which was not part of the first offence. For those eight offences, the appellant needed the bank account numbers of others. In return for making the false claim on the behalf of others, the appellant appears to have agreed that he would receive what the Magistrate described as ‘intangible benefits associated with you paying down your debts and repaying favours’.[10] That the appellant involved others in his offending was an important aspect of the eight offences contrary to s 135.2(2).
[9] Remarks on Penalty of Magistrate Soetratma, dated 9 June 2022, p. 5 (Remarks on Penalty).
[10] Ibid p. 5.
The appellant did not disclose his own guilt but admitted it when detected. At the time of sentence, the appellant had repaid the $1000 the subject of the first offence and the funds received by others had either been recovered or steps for eventual recovery were underway. While the description by the Magistrate that the offences were ‘morally repugnant’ was appropriate, it can be observed that the amount taken was not as significant as in many cases involving a fraud against the Commonwealth.
The two sentences – manifest excess
In submitting the two separate sentences were manifestly excessive, the appellant accepted that sentences of imprisonment were appropriate. The appellant emphasised that the offence contrary to s 134.2(1) involved a single act and an amount of $1000. The appellant also emphasised the amount the subject of the other eight offences was more limited than in some cases of a broadly similar type. The appellant submitted that there were steps towards rehabilitation since the offences were committed. Attention was drawn to the absence of offending in more recent times, employment and other signs of increased stability.
Among the matters emphasised by the respondent was the importance of not overlooking that the nine separate offences were, as the Magistrate appropriately described them, ‘ongoing, repeated and indeed systematic’. The respondent submitted that all relevant matters had been considered before either sentence had been fixed. The respondent directed attention to the importance of deterrence for offending of this type. The respondent submitted that the appellant was to be sentenced against the background of his record.
There can be no doubt of the need for both personal and general deterrence which respect to all offences.
The offence contrary to s 134.2(1) had a maximum penalty of ten years. At the same time, the offence involved a single act and an amount of $1000. The offence was committed by a homeless man. The appellant had no previous convictions for dishonesty, which is not to overlook his record. In all the circumstances, I am satisfied that a sentence of six months, after a discount of one third for the plea of guilty, was more than just a strong sentence. I am satisfied the sentence was plainly unreasonable or unjust. I am satisfied the sentence was manifestly excessive.
The eight offences contrary to s 135.2(2) had a maximum penalty of 12 months. The fixing of a single sentence indicates the Magistrate allowed some degree of concurrency. That was appropriate. The eight offences were committed over about two months and, for reasons given, involved an additional degree of planning. The conduct was considered, occurred against the background of the offence contrary to s 134.2(1) and reflected a conscious decision by the appellant to continue his criminality in the knowledge that he could not again use his own name. The offences also reflected a conscious decision to involve others in the criminality. That the appellant involved others was a serious aspect of the offences.
At the same time, the overall amount, while not insubstantial, is more limited than the amounts the subject of other offences against s 135.2(2) set out in some of the authorities referenced in the submissions of the parties with respect to like offending.[11] The period of the offending was also more limited than many of the authorities referenced in the submissions of the parties.[12]
[11] Panella v Wanganeen [2018] SASC 100 (Panella); Arkrie v Director of Public Prosecutions (Cth) [2012] WASC 200 (Arkrie); Esplin v Raffan [2008] WASC 42 (Esplin); Harding v Moreland [2006] WASC 8 (Harding).
[12] Panella; Ackrie; Emms v Barr [2008] TASSC 49; Esplin; Nolan v Jarvis [2006] TASSC 64; Harding.
In all the circumstances, I am satisfied a sentence of eight months, after a discount of a third for the plea of guilty was, manifestly excessive. I am satisfied the sentence was unreasonable or plainly unjust.
Re-sentencing
As I have found both sentences to be manifestly excessive, it is not necessary to consider the other complaints advanced by the appellant. The appeal must be allowed and the appellant re-sentenced.
Before re-sentencing, it must be noted that the appellant served two months and 11 days of the sentence imposed by the Magistrate before being released on bail pending the determination of this appeal. I will not repeat the circumstances of the offending, the personal circumstances of the appellant nor the matters which must be born in mind in sentencing.
For the offence contrary to s 134.2(1) I identify a notional starting point of five months. For each of the eight offences contrary to s 135.2(2), I identify eight notional sentences of six weeks. Putting aside that the offence contrary to s 134.2(1) involved an element of dishonesty, the nature of all nine offences was the same. All nine offences were committed over a relatively limited period for the same motive. In my view, the appropriate starting point for all nine offences is a single sentence of 12 months. On the hearing of the appeal, there was no complaint about the reduction for the guilty pleas given by the Magistrate. For the pleas of guilty, I reduce the sentence to nine months. Bearing in mind the period spent in custody, I impose a single sentence of six months, 19 days for the nine offences.
Pursuant to s 19AC of the Crimes Act, as the sentence is greater than six months but less than three years, in the ordinary course, I must make a recognizance release order. I recognise that in many cases of repeated offending of this type, a period to be served would be necessary to reflect the seriousness of the offending and the need for general deterrence. In the case of the appellant, personal deterrence also has importance. Further, there is less cause for leniency than for a first offender. At the same time, the appellant has served two months and 11 days.
In all the circumstances, including the period already served, I am satisfied the appropriate order is, pursuant to s 20(1)(b) of the Crimes Act, that the appellant be released on a recognizance release order for a period of two years in the sum of $500 with a condition that he be of good behaviour for two years.
Orders

I order:
1.The appeal is allowed.
2.The sentences imposed by the Magistrate are set aside.
3.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 sum of $500 with a condition that he be of good behaviour for two years.
4.I will hear the parties as to any other orders.