Buckley v Lovas - [2011] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUCKLEY v LOVAS
[2011] SASC 35
Judgment of The Honourable Justice Anderson
22 March 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal from decision of a magistrate - appellant pleaded guilty and was convicted of dishonestly obtaining financial advantage from a Commonwealth entity - CentreLink fraud - the magistrate sentenced the appellant to 5 months imprisonment - sentence not suspended - appeal to Supreme Court against severity of sentence - whether the magistrate erred in failing to give sufficient weight to the appellant's rehabilitation efforts - whether the sentence was manifestly excessive - whether term of imprisonment should be reduced or partially suspended.
Held: Appeal allowed for the purpose of reducing the time served in custody - magistrate erred in failing to give sufficient weight to the appellant's rehabilitation efforts - appellant to be released after serving 1 month and 26 days of term of imprisonment upon entering into a recognisance and giving security.
Criminal Code Act 1995 (Cth) s 135.2; Crimes Act 1914 (Cth) s 4K and s 20, referred to.
Kovacevic v Mills (2000) 76 SASR 404, considered.

BUCKLEY v LOVAS
[2011] SASC 35
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant pleaded guilty to three counts of “obtain financial advantage” contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth).
The allegations against the appellant were that he had obtained payment of Centrelink benefits by making a series of false statements in the application forms provided to Centrelink. It was alleged that he either falsely stated that he was not working at the relevant time and was not earning any income or he under declared the income he earned. In all, he obtained $4,397.91 to which he was not entitled.
The magistrate imposed one penalty pursuant to s 4K of the Crimes Act 1914 (Cth). The magistrate sentenced the appellant to 5 months imprisonment. The sentence was not suspended.
The issue is whether the sentence imposed by the magistrate was manifestly excessive.
Background
An agreed summary of facts was provided to the magistrate. During the period of offending the appellant was employed by two different employers and earned a total of $14,981.60 gross during that time.
He was required to report any income from such employment by lodging fortnightly Application for Payment of Newstart Allowance forms. On five of those forms the appellant under-declared his income. On eight of the forms he falsely stated that he had not earned any income during the relevant period.
The appellant is aged 32 years and has recently rented a property with a female friend and her two children, although he is not in a relationship as such.
In his early days he was taken out of school by his father in Year 11 and has since worked in various manual activities doing labouring and machine work in factories and on rural properties. He became unemployed in March 2007.
He has a long outstanding drug problem. This started when he was a teenager and was living with his father in Queensland. He was introduced to marijuana by his father. He later became involved in other drugs, including amphetamines. He spent money on his drug habit and also gambled on poker machines.
A lack of income to satisfy his drug habit resulted in the present offending. Unfortunately for the appellant, he also has a long criminal history. There are some previous convictions for dishonesty.
Despite his history it was submitted on his behalf, both to the magistrate and to me, that the appellant’s prospects of rehabilitation were good because it is sometime since his offending and he is now able to control his drug problem. He has been on a methadone program and he told me under oath that he was reducing the dose and had not lapsed into reoffending with drugs.
The magistrate’s sentencing remarks
The magistrate mentioned the offender’s history. In particular he mentioned the offending for dishonesty going back as far as 2002. The subject offences actually took place while the appellant was on a bond for some previous offending. After the subject offences the appellant again was involved in dishonesty offences in November 2008 and in January 2009. In relation to those later offences the magistrate correctly said that they were not relevant prior convictions per se and he did not use them for that purpose. However, he again properly took account of those in looking at the question of personal deterrence for the appellant. It was relevant to what the magistrate described as his “persistent dishonesty”.
The magistrate referred to the principles in Kovacevic v Mills (2000) 76 SASR 404 at 411-412. Those principles relate to both the need for deterrence in cases of deliberate and sustained fraud and the need for the courts to protect the integrity of the social security system. However the question of rehabilitation still remains an important consideration.
As stated by the majority of the Full Court at paragraph [43]:
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 rehabilitation of the offender must still be considered.
Whilst His Honour did mention the question of rehabilitation in his sentencing remarks, he does not seem to have fully considered the efforts of the appellant in his attempts to reduce his drug dependence.
The magistrate did not have the benefit of a pre-sentence report so I decided to obtain one.
The pre-sentence report provides the details of Mr Buckley’s unfortunate childhood where he became a cannabis user at the age of 13. He also worked for his father cultivating and later selling the drug. He commenced on “speed” at the age of 17, and became an intravenous user when he was 18. He later in 2010 became addicted to morphine.
He is now on a methadone programme and has reduced his dose from 80 milligrams to 25 milligrams. He no longer drinks alcohol.
Mr Buckley has been on a bond from 28 January 2009 for 18 months. Conditions relating to alcohol and drug counselling, victim awareness and psychological counselling were imposed. He has been advised to attend that counselling but did not respond.
He breached the earlier bond and is now subject to one ordered on 18 January 2011. He has to report fortnightly with the same conditions as before.
As I had no information to assist me I asked the appellant to give me brief evidence as to his methadone treatment and I was impressed with the fact that he appears to have approached the question of rehabilitation in a positive way in so far as it relates to the methadone programme.
It is acknowledged by both counsel that the sentencing remarks of the magistrate contain a typographical error. His Honour is recorded as saying, “I impose 12 months imprisonment for each individual offence”. Both counsel agree that His Honour did not say that but did say that 12 months was the maximum for each individual offence.
As I have indicated earlier the magistrate imposed a period of imprisonment of 5 months. He does not say what his starting point was and he does not say that he took into account the appellant’s plea of guilty. It is probable, in my view, that the magistrate had a starting point of about 6 months, did take into account the guilty plea, and probably allowed something around 20% for a discount for the guilty plea. Although this is speculation on my part it seems logical given the final result of 5 months imprisonment.
Considerations on appeal
A considerable part of the argument presented by Mr van Kruyssen on behalf of the appellant related to how the magistrate should have used the provisions of s 20 of the Crimes Act. This provision gave the magistrate several sentencing options, including to make a recognisance release order in accordance with s 20(1)(b), wholly suspending the sentence or reducing the amount of time to be served in prison.
Section 20 of the Crimes Act reads as follows:
20    Conditional release of offenders after conviction
(1)Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a)     by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specified in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;
(iii)that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; and
(iv)that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed; or
(b)     sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
(2)Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:
(a)     the purpose and effect of the proposed order;
(b)     the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A)A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.
(3)Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence.
(4)Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
(5)The maximum amount of the penalty that a court may specify in respect of the offence or each offence in an order made under subsection (1) in relation to a person is:
(a)     where the offence is punishable by a fine—the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b)     where the offence is not punishable by a fine:
(i)if the court is not a court of summary jurisdiction—300 penalty units; or
(ii)if the court is a court of summary jurisdiction—60 penalty units.
(6)Paragraph (1)(b) does not apply in relation to a minimum non‑parole offence mentioned in section 19AG, or offences that include one or more such minimum non‑parole offences. This subsection has effect despite subsection (1) and sections 19AB, 19AC, 19AE and 19AR (which permit or require a court to make a recognizance release order in certain circumstances).
Note:If the court sentences the person to imprisonment for a minimum non‑parole offence, it must fix a non‑parole period under section 19AG.
In considering the options available the magistrate said at [20]:
[20]I turn to decide whether or not you should serve all or some part of it [the sentence of imprisonment] by way of an order for immediate or delayed release. I take into account more potently, your personal circumstances, but I also take into account the need for a personal deterrence which has some importance when you look at your previous history of theft and dishonesty. I decline to order any immediate or other release; you should serve the entire five months imprisonment.
Submissions of counsel
Mr van Kruyssen argued that that was a harsh penalty, even given the antecedents of the appellant because of his positive attempts at rehabilitating himself.
Ms Devitt for the respondent argued that the sentence of 5 months imprisonment was appropriate. She referred to the maximum penalty for each of the three counts to which the appellant pleaded guilty. That was 12 months imprisonment and/or a fine of $6,600 for each count.
Ms Devitt argued that the magistrate neither failed to take into account relevant matters nor took into account irrelevant matters, and did take into account all the relevant factors outlined in s 16A(2) of the Crimes Act. These included the nature and the circumstances of the offending, the appellant’s personal circumstances and antecedents as outlined by his counsel, his previous criminal history, his plea of guilty, the prospect of rehabilitation, co-operation with the authorities and the effect of deterrence.
Ms Devitt referred to the principles of sentencing for welfare fraud as established in Kovacevic v Mills as set out earlier. This authority indicates that at least some term of imprisonment should actually be served in cases of deliberate and sustained fraud, even for a first offender. Mr van Kruyssen did not really seriously challenge this proposition. His main argument related to a reduction of the time to be served.
That in turn involves looking at the question of the magistrate’s discretion and whether first he should have ordered the period of imprisonment of 5 months and, secondly, even if so, should an order have been made that Mr Buckley be released after he has served a certain period of imprisonment in accordance with s 20(1)(b).
Conclusion
In my view, having regard to the nature of the offending, the fact that the offending took place whilst the appellant was on a bond and the fact that the appellant had been previously convicted for dishonesty offences, the term of imprisonment of 5 months is appropriate.
However, in relation to the time to be served, it is my view that the magistrate did not properly take into account the efforts made by the appellant in rehabilitating himself.
Accordingly I allow the appeal and vary the order made by the magistrate. The appellant should be resentenced to a period of 4 months and 26 days, taking into account the four days already served, and should be released after serving a term of 1 month and 26 days imprisonment provided the appellant enters into and complies with the conditions of the recognisance release order.
The appellant is to surrender to the Sheriff of the State of South Australia pursuant to the varied bail by no later than 3.30 pm on Friday 25 March 2011. The sentence of imprisonment is to commence upon the date the appellant surrenders to the Sheriff, or in default of surrender upon the date he is taken into custody upon arrest if a warrant is required to be issued by the Court.