Burns v Mulcahy

[1989] TASSC 83

Serial No. B5/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Burns v Mulcahy [1989] TASSC 83; B5/1989

PARTIES:  BURNS
  v
  MULCAHY

FILE NO/S:  LCA 11/1989
DELIVERED ON:  13 March 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B5/1989
Number of paragraphs:  11

Serial No B5/1989
File No LCA 11/1989

BURNS v MULCAHY

REASONS FOR JUDGMENT  CRAWFORD J

13 March 1989

1. The applicant has appealed against a head sentence of 14 days imprisonment imposed in the Court of Petty Sessions at Hobart on 9 February 1989. She was convicted of 43 offences, all involving her knowingly obtaining payments of a Supporting Parent's Benefit from the Department of Social Security, which were not payable, contrary to s239(1)(b) of the Social Security Act 1947. The offences extended over a period of 43 consecutive fortnights. On each occasion she was entitled to receive a benefit, but in a reduced amount because she had been earning income in employment, which fact she did not disclose to the Department. She was also convicted of 3 offences contrary to s239(1)(d), in that on three separate occasions she presented to the Department a twelve weekly review form in which she knowingly gave the false answer "No", to a question whether she had done any paid work during the previous twelve weeks. The 46 offences spanned the period 23 January 1986 to 3 September 1987. The applicant pleaded guilty.

1. Counsel for the applicant submitted that the sentence of 14 days' imprisonment was manifestly excessive, arguing that this is not a serious case of fraud and, in any event, there are substantial mitigating circumstances. The respondent has not opposed the appeal, his counsel also submitting that the learned magistrate failed to give sufficient weight to mitigating factors. I must exercise my own discretion.

1. I am satisfied that the applicant made a conscious decision not to disclose her income to the Department because she believed that the benefits would be reduced if she did so. Eventually like many other persons charged with such offences she found herself trapped in a course of conduct, out of which she could not escape until she was detected. Her other choice was to own up to the Department and suffer the consequences of her dishonesty to that point of time.

1. As a result of the offences she was paid each fortnight more than she was otherwise entitled to be paid. The total overpayment was $2,160. Since her detection she has made regular repayments and the amount outstanding at the time of the hearing of the appeal was $1,075.90. Her Family Allowance of $55 per month has been taken towards reimbursement of the overpayment and in addition she has been paying either $50 per fortnight or a month (I am not clear which) out of her own funds. Her payments have been regular and it therefore appears that she will have reimbursed the Department completely later this year. This is a mitigating factor.

1. The following matters should also be taken into account in the applicant's favour. When she was interviewed she confessed. At her first appearance in court she pleaded guilty and this is to her credit. She has no prior convictions of any relevant kind. She has the care and responsibility for her two children aged 8 and 6. Since she committed the offences she has married. She had a poor education, leaving school at the end of grade 8. She had learning difficulties. She married for the first time at age 19 and her husband left her after one year of that marriage. At the time of the commission of the offences she was therefore a single supporting parent caring for two young children from her only source of income, being the Supporting Parent's Benefit, until she was able to obtain the employment she failed to disclose to the Department. When her first husband left her she had to contend with a number of debts, including rental arrears of about $600, a loan debt of about $2,500 and a number of outstanding accounts in relation to electricity and telephone. Not only was she left with those debts, she was not given any financial assistance by her first husband in the form of maintenance. The learned magistrate quite rightly described her as being financially in a hopeless position, trying to cope on the Supporting Parent's Benefit. It also appears that the applicant has poor mathematical ability, is a poor financial manager and unable to keep any budget that is set for her. The offences were committed not so much out of greed but out of a sense of need, her debts and the children's demands creating a severe financial burden.

1. The learned magistrate was clearly influenced by what he perceived to be a need for a general deterrent penalty. He said:–

"Stated shortly, when an offender such as yourself is detected generally an example must be made of such a person to make it clear to others who are receiving, who are being, receiving benefits paid from a public fund, what they can expect if they do so improperly. That is if they are clearly not entitled to those benefits and continue to receive them. Having said that I return to consider the particular circumstances in your case. I do not consider a severe penalty by way of a specific deterrent is warranted as I do not think you will offend in this way again. Your need was it appears rather the greater than it might have been the case so had you not had the burden of a large debt to serve as well as back rent to pay. It's easy to understand why you deliberately defrauded the Commonwealth in the way that you did, but the law is such you can't be forgiven so that no substantial penalty at all should be imposed. So what I'm going to do is this, I shall treat the first count in the complaint of 42 counts as a head sentence, that is to say imposing penalty on that count I will bear in mind the other matters to which you've pleaded guilty. And on that count you will be sentenced to fourteen days' imprisonment to date from yesterday. And on all the other counts a conviction shall be recorded. Now that sentence of fourteen days may seem to be very light indeed, but having regard to the fact that your husband is in regular employment I'm told and you are both planning to purchase your own home you have a most promising future. And I am confident you will not offend again, only the element of specific deterrence has not loomed large in fixing the penalty. So that is the sentence I impose on you, fourteen days' imprisonment".

1. In my mind the learned magistrate erred at the start of the above passage, if he meant to indicate that imprisonment is normally imposed and served for such offences. Statistics revealing sentences in 81 other cases since March 1988 showed that in only 13 did the defendant have to actually serve a period of imprisonment, although there were a number of cases where suspended sentences were imposed or imprisonment was ordered but the defendant was released immediately on a recognizance.

1. I have considered what has been said by other courts concerning the sentencing principles to be applied in cases such as this. I will not repeat such statements. The cases include Fisher v Gibson 48/1986, Smith v Gibson 8/1988, Williams v Gibson 50/1986, Laxton v Justice (1985) 38 SASR 376 and R v Vasin (1986) 39 SASR 45. I accept that a custodial sentence may well be appropriate in the case of serious frauds not accompanied by substantial mitigating circumstances. In the applicant's case however I do not consider her case to be overly serious. The amount of money involved is not a great sum of money and I am particularly influenced by the fact that she will obviously repay it. Further there are other substantial mitigating circumstances in her favour which must be taken into account.

1. Overall I am satisfied that the sentence of imprisonment was manifestly excessive in all the circumstances I have described and that imprisonment should not have been ordered. The magistrate clearly accepted that imprisonment would not be of any deterrent effect so far as the applicant is concerned, for he was satisfied she would not offend again. I am conscious of the need for a general deterrent but at the same time a court must weigh up, particularly before sentencing a first offender to a term of imprisonment, the circumstances under which the offences were committed and any mitigating circumstances influencing the exercise of the sentencing discretion away from the imposition of a term of imprisonment. In fact, s17A(1) of the Crimes Act 1914 requires that a sentence of imprisonment shall not be imposed, unless the court is satisfied that no other sentence is appropriate in all the circumstances of the case.

1. In my view the appropriate course to adopt is that provided by s20(1)(a) of the Crimes Act 1914. It will be ordered that the applicant be released upon entering into a recognizance in the sum of $1,000 without surety, on condition:–

(i)that she will be of good behaviour for a period of two years; and

(ii)that she will make restitution in respect of the offences, in the sum of $2,160 (less the amount already repaid by her) to the Department of Social Security by no later than 31 December 1989.

1. Accordingly, the convictions will be affirmed, but the penalty imposed will be set aside, and the above sentence imposed in lieu thereof in respect of all the offences.