Brown v Commonwealth Director of Public Prosecutions No. Scgrg-99-426 Judgment No. S195

[1999] SASC 195

BROWN v DPP (COMMONWEALTH)
[1999] SASC 195

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide, following his plea of guilty to 30 counts of Social Security fraud.

2. Initially he was charged with 41 counts, to which he pleaded not guilty.  The learned magistrate embarked on a trial.  After hearing evidence, he ruled that there was no case to answer with respect to counts 31 to 41, which he thereupon dismissed. 

3. When he resumed the hearing of the remaining 30 counts, the appellant pleaded guilty to them, following which a conviction was recorded.  The appellant was sentenced to imprisonment for a period of seven months.

4. The learned sentencing magistrate went on to order the immediate release of the appellant, upon his entry into a recognisance in the sum of $500 to be of good behaviour for a period of two years.

5. In his notice of appeal, the appellant complains that the length of the period of imprisonment and the length of the recognisance were manifestly excessive.  However, at the outset of the appeal, Mr Nitschke, who appeared for the appellant, abandoned the second ground, concentrating his argument against the length of the period of imprisonment.

6. During the course of his argument, Mr Nitschke conceded that a term of imprisonment was not inappropriate, so that the appeal comes down to a consideration of the question whether or not the imposition of a term, albeit suspended, of seven months is manifestly excessive.

7. The appellant is 36 years of age with no prior record of offending.  At the time in question he was engaged intermittently in casual employment, being called in irregularly from week to week when the occasion and the demand warranted it, to assist as a salesman in a shop.

8. He gave evidence which was accepted by the learned magistrate that he did not always know the amount which he had earned during each fortnight, at the conclusion of which he was obliged to put in a statement in support of his application for Newstart Youth Training Allowance.  He estimated his earnings as best he could from the information which he had.  Of course, he must have had a general idea of how many hours he had worked during the period in question, but his remuneration varied depending upon the day of the week and the hours within the day upon which he was called in, and he did not always obtain satisfactory figures even when he asked about it from his employer.  At all events, his plea was predicated on a reckless rather than a deliberate and intentionally fraudulent course of dealing.

9. The period during which he understated his earnings extended between August 1996 and December 1997, and it is over that period that the 30 counts upon which he stood to be sentenced, extended.

10. I have been informed that the overpayment to him during that period amounted to $4,101 an amount which to his credit, the appellant repaid to the Commonwealth before he came up for sentence.

11. On my enquiry of Mr Ford who appeared for the respondent on the hearing of the appeal, I was given to understand that in order to reach an overpayment of that extent, the appellant must have understated his earnings by an amount of the order of $8,000, or on the figures which Mr Ford had, about half of what the appellant was earning at the time.

12. The maximum penalty for this offence is with respect to each count, one year's imprisonment.

13. Mr Nitschke has put everything which could possibly be advanced in support of the appeal.  At the forefront of his submissions was his contention that the learned sentencing magistrate must be taken to have failed adequately to reflect in the sentence which he imposed, the distinction between cases involving deliberate and intentional fraud on the one hand, and cases involving recklessness on the other.

14. However, he was not able to identify in the reasons for decision or the remarks on penalty given by the learned sentencing magistrate, any specific error, whether taking the form of a misapprehension of any facts, or failure to apply correct sentencing principles.

15. Indeed the learned sentencing magistrate referred in the course of his remarks to a number of the well known authorities dealing with the penalty to be imposed for systematic Social Security fraud.  However, none of those authorities and for that matter, none of the authorities to which I was referred during the course of the hearing of the appeal, relate to reckless as opposed to intentional or fraudulent concealment or statements.  It is quite right of Mr Nitschke to emphasise the distinction.  How much weight should be given to it, however, will depend on the circumstances of the case.  Recklessness could involve conduct which might be quite reprehensible, or it might involve conduct which is either fleeting or relatively venial.

16. Mr Nitschke also emphasised that at the relevant time the appellant was suffering from a medical condition, in that he had Hepatitis C, which, according to the evidence of a general practitioner called on his behalf, caused a good deal of distress and general fatigue, difficulty in sleeping and depressive moods.  All of those symptoms might have in sum total interfered with his ability adequately to manage his affairs and have a clear perception of the situation when putting in the returns in question.

17. Here, although the learned magistrate accepted that the conduct was reckless rather than intentional or deliberate, it was nonetheless serious, having regard to the amount of the shortfall in the disclosure by the appellant as to the extent of his earnings, and the fact that it went on for a not inconsiderable period of time.

18. As I have said, this is not a case where the appellant has been able to point to any overt error by the learned sentencing magistrate.  He is obliged to rely upon the argument, that standing back from the case, one would have to say that seven months was simply far too much, so much so that it would justify intervention by this Court.

19. The term of seven months is undoubtedly a substantial term of imprisonment.  It may well be that if I was to put myself in the position of the learned sentencing magistrate, I might not have imposed a penalty quite of that order.  But that is not the test.  The test is whether or not it can properly be said after taking into account all of the relevant circumstances, the sentence was manifestly excessive.

20. However, even giving every allowance for everything which might be said for the appellant, I am unable to perceive that the sentence of seven months imprisonment is manifestly excessive.  The onus is on the appellant to satisfy this court that intervention is warranted, and in my opinion he has failed to discharge that onus.

21. The appeal is dismissed.