Burman v Commonwealth Services Delivery Agency - [2004] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURMAN v COMMONWEALTH SERVICES DELIVERY AGENCY
Judgment of The Honourable Justice Gray
29 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT
SOCIAL WELFARE - SOCIAL SECURITY PAYMENTS - OFFENCES
Appellant charged with making a false statement under the Social Security Act - statements resulted in overpayment of social security allowance - appellant had received a warning letter on a prior occasion for the same behaviour - appellant sentenced to six months imprisonment and a bond - whether magistrate erred by treating general deterrence as the overriding principle - whether magistrate erred in treatment of earlier alleged similar offending - whether magistrate had proper regard to appellant’s prospects of rehabilitation - evidence of the appellants mental condition put before the court - magistrate erred - appellant resentenced to imprisonment for one month and release on a bond.
Social Security (Administration) Act 1999 (Cth) s 212; Crimes Act 1914 (Cth) s 16; , referred to.
Kovacevic v Mills (2000) 76 SASR 404; R v Place (2002) 81 SASR 395; Veen (No 2) (1988) 164 CLR 465; Ralph v Narwojee (Murray, Anderson & Templeman JJ, 17 Jan 2003, unr; Lari v Pavlos (Owen J, 17 May 1996, unreported), considered.

BURMAN v COMMONWEALTH SERVICES DELIVERY AGENCY
[2004] SASC 224
Magistrate’s Appeal

GRAY J: This is an appeal against sentence.
Background
Charles Burman was charged with seven counts of recklessly making a false statement contrary to sections 212 and 217 of the Social Security (Administration) Act 1999 (Cth). The offending occurred on 30 September and 19 December 2002 and on five occasions between 16 January and 13 March 2003.
Each offence involved Mr Burman lodging an application for the payment of a ‘New Start Allowance’ with Centrelink and at the same time providing a statement that he had not undertaken any work during the period covered in each application. In fact, on each occasion Mr Burman had been employed on a casual basis with Integrated Workforce.
As a result of the offending, Mr Burman received an overpayment of $2,123.94. Of that amount as at 19 April 2004, $904.56 had been recovered. This resulted from the withholding of social security benefits. Full recovery will be effected over time.
Mr Burman’s only prior offence of dishonesty was as a young offender. He was released on that occasion without conviction.
It was put to the magistrate by counsel for the Commonwealth that in May 2001 Mr Burman had obtained benefits when failing to correctly advise of income received. This conduct had led to a warning letter. On 15 September 2000 and 25 September 2002 administrative penalties were imposed on Mr Burman by Centrelink. This was for failures to correctly record employment income. A warning letter had been sent on 10 September 2001. This, it was said, put Mr Burman on notice that similar conduct would likely result in prosecution.
Counsel for Mr Burman informed the magistrate that his client was a 25 year…

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.

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Details

Case: [2004] SASC 224
Decision Date: 29 July 2004

CaseChat Overview and Summary

In the case of Burman v Commonwealth Services Delivery Agency, the appellant, Mr Burman, was charged with making a false statement under the Social Security Act, which led to an overpayment of social security allowance. The court was asked to determine whether the magistrate erred in treating general deterrence as the primary principle and in handling the appellant's prior similar offending. Additionally, the court examined whether the magistrate had adequately considered the appellant's prospects for rehabilitation. The magistrate's sentencing was reviewed in light of the appellant's deteriorating mental health, which was presented as evidence during the trial.

The central legal issue was whether the magistrate erred in the sentencing process, particularly in emphasising general deterrence over other relevant sentencing principles. The court examined the balance between general deterrence and the consideration of rehabilitation, especially in light of the appellant's mental health. The court also scrutinised whether the magistrate had appropriately considered the appellant's earlier warnings and similar conduct, and if the overall sentence was disproportionate given the appellant's mental health issues.

The court found that the magistrate had erred by overemphasising general deterrence, particularly given the appellant's poor mental health. The original six-month imprisonment sentence was deemed manifestly excessive. The court concluded that a more appropriate sentence would reflect the need for rehabilitation and the appellant's mental health issues. The court resentenced Mr Burman to one month imprisonment, with immediate release due to his mental condition, and upheld the existing bond terms.

The final orders were that the appeal was allowed, the original sentence of six months imprisonment was set aside, and Mr Burman was sentenced to one month imprisonment with immediate release. The bond terms remained unchanged as they adequately addressed the appellant's need for ongoing treatment. The court stressed the importance of considering mental health and rehabilitation in sentencing for similar offences.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances it is unnecessary to fully consider the contentions that the penalty imposed was manifestly excessive. However even if no sentencing error had been identified, in the circumstances of this case, having regard to the appellant’s poor state of mental health, it would be open to conclude that the sentence was manifestly excessive.Conclusion For the forgoing reasons this appeal should be allowed. The sentence imposed by the magistrate should be set aside. Mr Burman should be sentenced to a term of imprisonment of one month. However an order should be made for his immediate release. It is important that he receive ongoing treatment. The bond that he has entered into addresses these matters. In these circumstances there is no need to alter the terms of the bond. The appeal is allowed. The sentence of six months imprisonment is set aside. A sentence of imprisonment of one month is imposed and an order is made for Mr Burman’s immediate release.

Ratio Decidendi

Legal Principle Established

Further evidence was tendered with the consent of the Commonwealth regarding Mr Burman’s mental health. Subsequent to being sentenced, his mental health had deteriorated to the point that he required further hospitalisation.Consideration of Issues on AppealGeneral Deterrence Division 2 of part 1B of the Crimes Act 1914 (Cth) addresses the general sentencing principles to be applied in sentencing for Commonwealth offences. Section 16A(1) is in the following terms:(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.Section 16A(2) [1] identifies particular matters to which the sentencing court must have regard. Although not mentioned specifically, it is accepted that general deterrence is a relevant matter for consideration.[2][1] In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:[2] See R v Selleck (2000) 78 SASR 194 at 211-212, R v Paull (1991) 20 NSWLR 427 at 434 and Director of Public Prosecutions (Cth) v El Karhani (1990) 20 NSWLR 370 at 380. In Kovacevic v Mills[3] Doyle CJ, Mullighan, Bleby and Martin JJ made the following observations with respect to sentencing for offences of social security fraud:We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: …[3] (2000) 76 SASR 404. The principles discussed in Kovacevic v Mills have also been applied in Stevens v Centrelink [2003] NTSC 16, Garnsey v Stamford (2002) 131 A Crim R 427, Parente v Commonwealth (2002) 220 LSJS 126, Cruse v Treminio [2001] ACTSC 59, Director of Public Prosecutions v Milne [2001] VSCA 93, R v Blackman [2001] NSWCCA 121, Hayward v Hubbard [2000] WASCA 416