Ballantyne v The Queen
[2011] WASC 308
•26 OCTOBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BALLANTYNE -v- THE QUEEN [2011] WASC 308
CORAM: McKECHNIE J
HEARD: 26 OCTOBER 2011
DELIVERED : 26 OCTOBER 2011
FILE NO/S: SJA 1054 of 2011
BETWEEN: DAVID JAMES BALLANTYNE
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M E PONTIFEX
File No :BU 4544 of 2010
Catchwords:
Criminal law and procedure - Sentence - Three offences - Whether global penalty appropriate
Legislation:
Nil
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Ms S J Oliver
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Ralph v Nawrojee [2003] WASCA 5
McKECHNIE J:
What this case is about
Is a fine of $2,000, on top of an ISO, with supervision and community service conditions, an excessive penalty for defrauding the Commonwealth of about $550? The answer is yes.
Background to sentence
The appellant pleaded guilty to three charges of obtaining Newstart allowances knowing that he was not eligible to do so under the Criminal Code (Cth), s 135.2(1). The offence related to three periods; 31 October to 14 November 2007, involving the sum of $151.74; 28 November to 12 December 2007, a sum of $405.10; and 5 March 2008 to 5 January 2009, a sum of $10,304.27. The total amount defrauded was $10,864.11.
The offences came about because the appellant did not declare, and under‑declared, his income from employment with King Tree Care. He had been in receipt of Social Security payments intermittently since June 1996 and in receipt of Newstart during the charged period. Recipients are required to complete regular application forms to receive the allowance. Centrelink uses their information to calculate the correct rate of entitlement.
The accused lodged 14 forms during the charged periods. He was employed by King Tree Care during the period on a casual basis and earned a total of $23,263.93 gross, or about $969.28 per fortnight.
On four occasions he under‑declared his income and on 10 occasions he failed to declare his income on the form. In total, he declared only $1,037. The prosecution's submissions before the magistrate were that all options were open including imprisonment.
A pre‑sentence report reported that the appellant was in a poor financial state at the time. His girlfriend became pregnant with twins and he needed the extra money to buy basic necessities in preparation for their birth. He had started to pay back $100 per fortnight regularly to Centrelink commencing a year before and had repaid about $3,000 of the $10,864.11 owing.
The appellant was aged 31 at the time of sentence and has a court history. He reported an addiction to illicit substances and heavy debts as the triggers for most of his past offending. He declared that his present financial situation was that he was receiving a parenting pension and family tax benefit from Centrelink to a total of $1,090 per fortnight but that Centrelink may reduce the entitlement because of custody arrangements for his twins.
He was paying $100 as a payment to Centrelink and after paying rent and other basic necessities, would usually be left with very little money. He is currently paying back $10 per week towards his credit card expenses of $2,500. He had no outstanding fines.
In mitigation, it was acknowledged that his behaviour was deliberate and that he had a significant level of remorse about his conduct. At the time of the offences, it was submitted that he was under significant financial hardship.
The prosecutor said that he was not necessarily asking for imprisonment but the amount is at the higher end of the scale and obviously general deterrence is paramount.
The magistrate's reasons in sentencing note 'It was a significant breach of trust. It is easy to perpetrate'. She noted that courts have always taken a dim view of these matters and on many occasions imprisonment resulted. She noted the plea of guilty and remorse and that the offending occurred at a difficult time and under difficult financial and personal situations.
Although his record was not helpful, these are the first offences of their type. The court would be somewhat confident the appellant would not reoffend in a like manner. She noted the need for some deterrence, although not by way of imprisonment. The punishment needs to reflect the seriousness of the crime the appellant had committed.
She took the view that community work hours are not sufficient and on the major charge (4546/10) (involving $10,304.27) the appellant was placed on a nine‑month ISO with supervision, and 200 hours' community work. The remaining amounts defrauded, she found to be, at the lesser end and the appellant was fined $1,000 in respect of each; a total fine of $2,000.
Grounds of appeal
The learned sentencing magistrate erred in imposing cumulative fines in relation to charges 1 and 2 of the prosecution notices. Such fines:
(a)fail to take into account the means of the appellant and his personal circumstances;
(b)fail to take account of the one transaction principle of sentencing; and
(c)resulted in an overall sentence which, in its totality, was manifestly excessive.
My disposition of the appeal
The grounds of appeal are generally made out. The sentencing principles for social welfare fraud were set out in Ralph v Nawrojee [2003] WASCA 5 [25] ‑ [27] (Anderson J), and they have been followed consistently. There is no question that general deterrence is a dominant consideration.
What needs to be remembered, however, is the total fine of $2,000 was imposed on a fraud totalling $550. The more serious fraud, both in its extent and amount, was dealt with more seriously by the magistrate with the imposition of the ISO for nine months with supervision and community work requirements.
That is a recognition of both seriousness and the need for general deterrence. All the offences had similar elements and could be effectively regarded as one transaction. However, this is a good working rule only. The magistrate took the view that the penalty was not sufficient. Manifest excess is a conclusion but I respectfully disagree with the magistrate and conclude that the one transaction rule, which is a good working guide, should have encompassed all three offences in this case.
Moreover, the amount of the fine had to take into account the appellant's difficult financial circumstances. He was unable to work because he was the sole carer for his children. His parenting allowance was being withheld to repay the overpayments and he had been ordered to make reparation of $7,455.81.
Having regard to the amount in issue in all the circumstances that the total fine of $2,000 on top of the ISO was an error. This was effectively one course of conduct and the overall criminality should have been dealt with by a global penalty encompassed by the ISO and its conditions.
I allow the appeal, set aside the fines in each case, and in lieu extend the ISO to each of those charges.
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