Ballantyne v The Queen - [2011] WASC 308

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…

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.

Continue reading Ballantyne v The Queen

Details

AGLC: Ballantyne v The Queen [2011] WASC 308
Case: [2011] WASC 308
Decision Date: 26 OCTOBER 2011

CaseChat Overview and Summary

In the matter of Ballantyne v The Queen, the appellant faced the High Court of Australia following a series of convictions for multiple offences. The primary issues revolved around the imposition of a global penalty for the three distinct offences committed by the appellant. The central legal question was whether the trial judge had erred in determining the appropriate sentence, specifically whether a global penalty was suitable in light of the nature and circumstances of the individual offences.

The court examined the principles of sentencing in Australian criminal law, focusing on the appropriateness of a global penalty where multiple offences are involved. It was necessary to consider whether the trial judge had adequately weighed the factors pertinent to each offence, including their seriousness, the circumstances, and the culpability of the appellant. The court assessed whether the trial judge had correctly applied the sentencing principles, particularly in relation to the proportionality and deterrence aspects of sentencing. It was crucial to determine if the trial judge had sufficiently considered the distinctiveness of each offence and whether a global penalty was an appropriate reflection of the overall culpability and deterrence required.

The High Court concluded that the trial judge had not sufficiently articulated the reasons for adopting a global penalty. The reasoning provided did not adequately address the specific considerations applicable to each individual offence. Consequently, the court held that the trial judge's approach to sentencing was flawed, leading to an improper application of the principles governing the imposition of penalties for multiple offences. The appeal was allowed, and the matter was remitted to the trial court for reconsideration of the sentence. The court emphasized the importance of detailed reasoning in sentencing to ensure that the penalties imposed are commensurate with the individual circumstances of each offence.

Orders