Arthur Roy Coombes v Director of Public Prosecutions (Cth) No. SCGRG 96/2136 Judgment No. 5950 Number of Pages 5 Criminal Law and Procedure

[1996] SASC 5950

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA WILLIAMS J

CWDS
Criminal law and procedure - obtaining social security payments by false statements - appeal against penalty - appellant convicted of obtaining `Newstart' allowance payments which were not payable - sentenced to eight months imprisonment; to be released after six weeks - no special mitigating features - sentence not manifestly excessive - appeal dismissed. Social Security Act 1991ss1344; 1347(b); 1353, referred to. Rainey v Director of Public Prosecutions (SCSA, Olsson J jud no 5497 6 March 1996 unrep) , distinguished. Director of Public Prosecutions v Scott (SCSA Williams J jud no 5768 21 August 1996 unrep) , discussed. Fischer v Director of Public Prosecutions (1995) 183 LSJS
234 ; R v Cameron &; Simounds (1993) 171 LSJS 305 , considered.

HRNG ADELAIDE, 5 December 1996 (hearing), 19 December 1996 (decision) #DATE 19:12:1996 #ADD 29:1:1997

Counsel for appellant:        Mr J Noblet

Solicitors for appellant:    David Stokes and Associates

Counsel for respondent:     Mr M Loftus

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 WILLIAMS J

1. This is an appeal against penalty imposed by a Stipendiary Magistrate in the Adelaide Magistrates Court on 10 October 1996. On 29 August 1996 the appellant pleaded guilty to 14 counts involving contraventions of s1344(1)(a) of the Social Security Act 1991. These offences occurred between 14 November 1994 and 24 July 1995. On each of these occasions the appellant knowingly or recklessly made a false statement in connection with or in support of a claim for a social security payment namely "Newstart Allowance" for himself. On each of these occasions the appellant in the form of an application for payment of the allowance falsely stated that he did not have a full time job, at the relevant time.

2. The appellant also pleaded guilty to a further 5 counts involving contraventions of s1347(b) of the Social Security Act. These offences occurred between about 23 December 1994 and 27 June 1995. On each of these occasions the appellant knowingly obtained payment of an instalment of a social security payment namely "Newstart allowance" which was not payable. In each case the appellant was not entitled to the allowance by reason of his employment with and income from his employment with the City of Tea Tree Gully.

3. The Magistrate imposed a single penalty under s1353 of the Social Security Act of eight months imprisonment. The Magistrate further ordered that the appellant be released after six weeks upon the appellant entering a recognisance in the sum of $800 to be of good behaviour for 18 months. The appellant is also required to make reparation in the sum of $6701.48 within three months.

4. The grounds of appeal are that the penalty imposed was manifestly excessive in all the circumstances.

5. The circumstances of the offending are as follows:
    1. During the period of offending (9 November 1994 to 24 June 1995)
    the appellant was in receipt of the Newstart Allowance.

2. The offences were discovered on 15 December 1995 as a result of
    public information received;

3. The offences arose when the appellant failed to advise the
    Department of Social Security that he had been in full-time
    employment with the Tea Tree Gully Council from 9 November 1994; in
    completing the forms relating to Newstart payments the appellant
    denied being employed at all;

4. The appellant's average gross weekly wages at this time were
    generally in excess of $400 a week; but in some instances the
    appellant was entitled to partial payment under the Newstart scheme;

5. The overpayment calculated by the Department of Social Security
    equated to $6701.48, of which $330.40 had been repaid by March 1996;

6. The appellant when interviewed by Social Security investigators
    on 22 March 1996 made full admissions.

6. The Magistrate took account of the period of offending and the fact that offences of this type "are pre-meditated, fraudulent actions affecting the payment of social security".

7. The sentencing magistrate obtained a pre-sentence report which (inter alia) established the following:
    1. The appellant is currently 37 years of age;

2. The appellant has had various employment, and at the time of
    offending was employed by the Tea Tree Gully Council. He has been
    in this employment for three years. He gained this employment after
    being unemployed for a period of three years;

3. The appellant is married. His wife has two children from a
    previous marriage, the younger of whom is fourteen.

4. The appellant has one child from a previous relationship who he
    sees on a regular basis;

5. The appellant has committed several offences over the past
    sixteen years;

6. The appellant claimed that he needed the money desperately to
    meet legal costs;

7. The appellant is currently on a supervised bond in relation to a
    conviction for indecent assault. He has completed the 120 hours
    community service in relation to this conviction.

(The pre-sentence report also highlights the concerns of the
    appellant that a term of imprisonment would cause him to lose his
    current employment).

In an affidavit sworn on 3 December 1996 the appellant gave his version of the proceedings before the magistrate. The appellant did not recall being invited to make submissions. Whilst the affidavit stopped short of alleging some procedural irregularity in breach of the rules of natural justice, I satisfied myself by enquiry from counsel that the appellant was not seeking to raise any such issue.

8. Counsel for the appellant relied upon the decision of Olsson J in Rainey v Director of Public Prosecutions (6 March 1996 - Judgment No.5497) which had some factual similarities to the present case. In that case the amount involved was $4435; there were 14 counts of having knowingly obtained payment of a Social Security payment not either wholly or partially payable. The charges related to receipt of a "Newstart allowance" and the offences took place over a period of about 6 months. The sentencing Magistrate imposed a custodial sentence of 6 months but directed release of the offender after serving 1 month upon entering into a bond. Olsson J allowed the offender's appeal and set aside so much of the order as required actual service of the one month in prison. His Honour said:
    "It is not for this court to fine-tune, as it were, sentences
    imposed by magistrates, and I am only justified in interfering if I
    am quite satisfied that the sentencing discretion has miscarried. I
    regard this as being a case which is rather near the borderline in
    that regard. But, on balance, I am very influenced by the
    consideration that, on the one hand, there is much to be said in
    mitigation in this case, in a way which does not arise elsewhere,
    and that the relevant sentencing statistics do tend to speak for
    themselves.".

9. In my opinion one must be extremely careful in seeking to compare the facts of one case with the facts of another case for sentencing purposes; it is the principle to be extracted from a case which is important. Nevertheless, counsel having relied upon Rainey's case, I should point out that the decision turned on its own facts and in particular:
    1. The offender there was a person of good character with no prior
    relevant antecedent record.

2. The offender there (in special circumstances) objectively
    demonstrated his contribution in a tangible fashion - this was
    treated as an important element in mitigation alongside the
    offender's good record.

3. The offender there was charged with obtaining benefits not
    properly payable (rather than the making of a false statement).

10. In the case of the present appellant his record discloses (inter alia) dishonesty offences; his record includes a conviction on 27 September 1994 for which he received a suspended sentence - only two months before the first of the false statements in the present series of offences with which I am now concerned. (I observe that the conviction on 27 September 1994 was not for a dishonesty offence but for indecent assault; on that occasion the sentence of 6 months imprisonment was suspended with a two year bond). The appellant's record shows a disregard for the law in South Australia and Queensland. He is unable to call in aid the good record which was available to Rainey.

11. In Director of Public Prosecutions v Scott (SCSA Williams J, Judgment No. 5768 - 21 August 1996 unrep.) I reviewed the sentencing principles which are to be applied in cases involving deliberate fraud in relation to the Social Services legislation. I referred to Fischer v Director of Public Prosecutions (1995) 183 LSJS 234 where Lander J reviewed a series of decisions before and after that of the Full Court in R v Cameron &; Simounds (1993) 171 LSJS 305. In Fischer's case Lander J at 237-238 said:
    "Prior to R v Cameron &; Simounds there had been a number of previous
    decisions with similar injunctions; Clare v Rehn (1992) 166 LSJS
    78, Moir v Venning (Olsson J, unreported, 16 July 1992: Judgment No.
    3508; Flavel v Venning (Olsson J, unreported, 16 July 1992:
    Judgment No. 3507. There have been decisions since, which have
    applied those previous decisions rigorously: Adams v Pataki (Debelle
    J, unreported, 16 March 1993: Judgment No. 3885); Holmes v Gray
    (Prior J, unreported, 4 April 1995: Judgment No. 5032).

All of the cases suggest that it would only be in exceptional
    circumstances that a person convicted of sustained offences
    involving deliberate fraud of social services legislation would
    escape a period of imprisonment. It seems to me that a period of
    imprisonment must be nearly always imposed unless there is some
    special mitigating feature in the circumstances of the offences, or
    peculiar to the offender, which would make the imposition of
    immediate imprisonment not necessarily appropriate: Keeley v
    Department of Social Security (Mullighan J, unreported, 30 July
    1993: Judgment No. S4075."

12. I do not consider that in this case the appellant can demonstrate that his personal circumstances or the circumstances of his sustained offending are, in any way now relevant, out of the ordinary. There are not special mitigating features in the circumstances of the offences or peculiar to the appellant, which would militate against the imposition of a term of imprisonment to be served immediately.

13. In my opinion the appellant has not demonstrated that the sentence is manifestly excessive. Indeed it appears to reflect the sentencing principles to which I have referred. In reaching this conclusion I have scrutinised closely the oral and written submissions made on behalf of the appellant.

14. The appeal is dismissed.