Clayton v Mulcahy
[1990] TASSC 25
•27 June 1990
Serial No 19/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Clayton v Mulcahy [1990] TASSC 25; A19/1990
PARTIES: CLAYTON
v
MULCAHY
FILE NO/S: LCA 3/1990
DELIVERED ON: 27 June 1990
JUDGMENT OF: Crawford J
Judgment Number: A19/1990
Number of paragraphs: 26
Serial No 19/1990
List "A"
File No LCA 3/1990
CLAYTON v MULCAHY
REASONS FOR JUDGMENT CRAWFORD J
27 June 1990
The applicant seeks to review a sentence of three months' imprisonment imposed by a magistrate on 16 February 1990 in respect of 24 offences, committed on various dates between 22 April 1988 and 19 May 1989, of presenting to the Director of Social Security a document which was false, contrary to s239(1)(d) of the Social Security Act 1947 and one further offence of knowingly, between 18 November 1988 and 31 January 1989, obtaining payment of four instalments of unemployment benefit which were not payable, contrary to s239(1)(b) of the same Act.
The applicant appeared before the magistrate on 9 January 1980. He was unrepresented and pleaded guilty to all charges. The prosecutor told the magistrate that the applicant was in receipt of unemployment benefits from 7 March 1988 to 19 May 1989. He was employed at the Mowbray Hotel on a casual basis from 9 April 1988 to the day of hearing. Between 9 April 1988 and 20 October 1988 he was not so employed every week, but in those weeks during which he was employed he earned amounts which varied between $40 and $268. Between 20 October and 18 May 1989 he was employed each week earning between $70 and $477 per week, averaging $280 per week. During the whole period he had earned a total of $10,537.91 and at the same time received unemployment benefits totalling $8,582.40. He had failed to declare this employment and income on forms of application for continuation of unemployment benefit and for payment of unemployment benefit. The learned magistrate was told that there was a resulting over–payment of benefits in the sum of $5,222.59. The applicant was interviewed by officers of the Department of Social Security and had admitted the offences and that he knowingly received benefits to which he was not entitled. On being asked why he failed to declare his income, he replied that he was unsure if the work would continue. The applicant did not dispute any of these matters and the hearing was adjourned until 9 February 1990 for a pre–sentence report.
The pre–sentence report revealed that the applicant was 53 years old and had had a close–knit and stable family environment in his upbringing. His marriage produced four children, the youngest of whom was 18 years old, but marital problems had occurred and he had left his wife some 16 months before. Enquiries revealed that his wife was very domineering and had become very bitter as a result of the breakup, doing everything in her power to turn the children against the applicant, and in fact only one of the children continued to relate well with him. He had been emotionally affected by the breakup and had left his wife with the house and all other assets. Some 6 or 8 months previously he had formed a relationship with a long–time female friend, and that relationship appeared stable and secure. He was only educated to grade 9 level. He had been employed by a company for 17 years but left that employment because he was sick of it, being a foreman at the time. Since then he had worked mainly in the hotel industry, but he obtained employment at a menswear store, being retrenched after 12 months when the store was sold. He then came to be in receipt of unemployment benefits but obtained casual hotel employment and he committed the offences. At the time he did so he claimed that he was at a low–ebb because of concerns about finding permanent employment at his age and at the same time he was also experiencing his marital problems. At the time of the pre–sentence report he was employed as assistant manager of a hotel on a casual basis earning about $250 per week with commitments of $132.77 per month for a car loan and $30 per week repayments to the Department of Social Security. Enquiries indicated that he was a very genuine, generally truthful and honest person and that the offences were totally out of character for him. He had no prior convictions of any kind. He claimed that the situation became out of hand when he failed to declare his earnings whilst only working a day here or there at the hotel. He had expressed concern that if he was imprisoned his reputation in the hotel industry would be tainted forever. The probation officer said that he was extremely remorseful and regretted the offences. The officer reported that he had no glaring problems and that the offences had caused him a great deal of concern. Community service was available for him and supervision was not considered necessary unless contemplated as an adjunct to community service orders.
On 9 February 1990, the applicant did not dispute the report and added that he had "an extension of time in my job as Assistant Manager at the hotel and things are looking good for me there. Everything's going in my favour". He said that normally he was working about 24 hours a week but had been working a little more than this since being assistant manager. The learned magistrate remanded the applicant in custody for six days, until 15 February.
On 15 February, counsel appeared for the applicant and made a plea in mitigation.
He tendered to the learned magistrate a work reference from the hotel licensee verifying that the applicant was honest and dedicated to his work, being an ideal choice for a managerial position. The counsel supplemented the probation officer's report by saying that the hotel employment commenced as simply one shift a week and not necessarily a full shift, and in those circumstances the applicant had commenced to lodge unemployment forms without declaring that employment. In some fortnights there was no over–payment of benefits, but over the period covered by the charges the work increased and at times the whole of a particular benefit payment was not due. During the period, marital stresses occurred and he left his family home in circumstances in which the children were turned against him and at a time when he was otherwise homeless. In fact it was said that he slept in a car and was an emotional wreck. His counsel said that in these circumstances the applicant had allowed the situation to continue which was something he would not have contemplated in other circumstances. It was said that the applicant desisted from committing the offences because of a realization that what he was doing was wrong. It was submitted that one could be confident that he would not re-offend and that a period of actual imprisonment was not required. Reference was made to community service orders as a sentencing option. There then followed a discussion between counsel and the magistrate, it being implicit from what was said, but it was not expressly stated, that the learned magistrate tended to the view that the offences were of sufficient seriousness to warrant actual imprisonment. Counsel addressed further and concluded by submitting that "your Worship need not be satisfied that a further period of actual imprisonment is the only appropriate penalty and that the necessary (sic) factors of general deterrence can be accommodated by alternative penalties". The learned magistrate commented that counsel had given him "some food for further thought" and the applicant was remanded in custody until the following day for sentence.
When sentencing next day, the learned magistrate said that the offences could not be characterised as a brief lapse of someone going through hard times. Those hard times did not justify a continuation of fraud on the Commonwealth, according to the magistrate. The continuation indicated just how difficult it was to detect this kind of offence. The learned magistrate then said that he took "into account what your counsel has said on your behalf and your personal circumstances. However, the offences nevertheless call for, I think, a deterrent penalty which will deter you from committing this kind of offence again, and also deter others. I therefore propose to sentence you on the complaint to three months' imprisonment". A reparation order was made in the sum of $4,336.20.
Ground 1
"The learned magistrate erred in law and in fact in finding that the total amount of over–payment was $5.200".
This ground has not been made out. The prosecutor told the magistrate that the over–payment amounted to $5,222.59 and that was not disputed by the applicant. However, I was told the figure was mistaken, the correct amount being $4,310.19. It was agreed by counsel that in other regards and out of fairness I should approach the application upon the assumption that the correct amount was $4,310.19.
Grounds 2, 4, 5 and 7
"2The learned magistrate erred in law in that he failed to give adequate consideration to the range of penalties open to him, and in particular, to the considerations for and against the imposition of a sentence of imprisonment.
4The learned magistrate erred in law in that he imposed a sentence of imprisonment without having considered all other available sentences as required by s17A of the Crimes Act 1914 (Commonwealth).
5The learned magistrate erred in law in that he imposed a sentence of imprisonment without being satisfied that no other sentence was appropriate in all the circumstances of the case as required by s 17A of the Crimes Act 1914 (Commonwealth).
7The learned magistrate erred in law in that he imposed a sentence of imprisonment and failed to comply with s17A(2)(a) and/or (b) of the Crimes Act 1914".
The relevant provisions of s17A were as follows:—
"(1)A court shall not pass a sentence of imprisonment on any person for an offence against the law of the Commonwealth, or of the Australian Capital Territory or an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2)Where a court passes a sentence of imprisonment on a person for an offence against the law of the Commonwealth, or of the Australian Capital Territory or an external Territory that is prescribed for the purposes of this section, the court—
(a)shall state the reasons for its decision that no other sentence is appropriate: and
(b)shall cause those reasons to be entered in the records of the court
(3)The failure of a court to comply with the provisions of this section does not invalidate any sentence".
The purpose of subsection (3) is to ensure that non–compliance with subsections (1) and (2) does not render the sentence invalid, that is void ab initio, but its effect is not to protect a sentence passed in circumstances contravening the provisions against a successful appeal or review by a higher court. The sentence will be valid in the same sense that any sentence will be valid notwithstanding a specific error in the court's reasoning or a non–specific error such as in the case of a sentence which is manifestly excessive or inadequate.
In Jackson (1966) 50 Cr App R 127, the Court of Criminal Appeal considered s17(3) of the Criminal Justice Act 1948 (UK) which provided that when a court imposed imprisonment on a person under 21 years of age, it "shall state the reason for its opinion that no other method of dealing with him is appropriate". There was no provision similar to s17A(3) of the Crimes Act 1914. The court was of opinion that the sentencing Recorder had complied with the section but, at p131, it was added:— "Even had he not done so, the consequences would not have been that the sentence of imprisonment could not stand. It would still be for this court to adjudicate upon the appropriateness". In R. v Chesterfield Justices, Ex Parte Hewitt [1973] Crim LR 181, the Queens Bench Divisional Court considered s107(3) of the Magistrates' Courts Act 1952 (UK). The court said that although the subsection imposed a mandatory duty on justices to state the reason why they considered that no sentence other than imprisonment was appropriate when sentencing a person under the age of 21 years, the failure to perform that duty did not affect the validity of the sentence passed. The court said that the law was correctly stated in Jackson.
In the Supreme Court of the Northern Territory, Kearney J considered an appeal from a sentence imposed by a magistrate in Freeman v Pulford (1988) 92 FLR 122 and decided that the magistrate had not directed his mind to the statutory question in s17A(1) whether he was "satisfied that no other sentence (was) appropriate in all the circumstances of the case". Kearney J continued at p127:—
"Such an approach constitutes appealable error since it involves a miscarriage of the sentencing discretion, within the meaning of House v The King (1936) 55 CLR 499 at 505 and Cranssen v The King (1936) 55 CLR 509 at 520.
I observe in passing that I do not consider that Mr. Trigg, counsel for the respondent, was correct in his submission that the effect of s17A(3) is that a failure to comply with s17A(1) does not ipso facto constitute a ground for upholding an appeal against sentence, and that some further error in the sentencing process must be shown. In Morgan v Schrapel (1983) 2 NTJ 523 it was accepted that non–compliance[i] with s17A(1) meant that the sentence imposed could be reviewed. The purpose of s17A(3) is simply to make it clear beyond doubt that the provisions of ss17A(1) and 17A(2) are directory and not mandatory, with the result that non–compliance with them does not make the sentence a nullity; see to the same effect Morris v Crown Office [1970] 2 QB 114 at 122–123, per Denning MR, a decision on corresponding legislation in the United Kingdom which lacks an equivalent to s17A(3)".
Kearney J, having found the appealable error, proceeded to review the sentence and to exercise his own sentencing discretion, having sufficient material upon which he could do so.
An explanation of the difference in effect between a statutory provision which is mandatory and a provision which is only directory, can be found in Howard v Bodington (1877) 2 PD 203 at pp210 and 211. The mandatory requirement will result in nullification for disobedience, but breach of a directory provision will not have such a result.
In Fisher v Gibson, 48/1986, Neasey J had the following to say at p9:—
"The learned magistrate's sentence is not invalidated by his failure to comply with that section—S17A(3), but nevertheless, his Worship's failure to make any reference to the requirements of section 17A together with his statement that the only sentencing options available to him were a fine or imprisonment, indicates, in my opinion, that the sentencing discretion was erroneously exercised in that the court failed to give adequate consideration to the range of penalties open to it, and in particular to the considerations for and against the imposition of a sentence of imprisonment."
For that and other reasons, Neasey J held that the sentencing discretion had miscarried and the penalty imposed had to be set aside. He proceeded to exercise the sentencing discretion afresh.
The section does not require the court which imposes a prison sentence to make an express mention of the section, but it does require that, after a consideration of all other available sentences, the court must come to a decision that no other sentence is appropriate, and it must state its reasons for so deciding. This was said by the Full Court of the Federal Court in Petreski v Kargill (1988) 79 ALR 235 at 243 following which the court added:—"The important thing the section requires is the statement of reasons why the court is satisfied that no sentence other than a sentence of imprisonment is appropriate". The court concluded that the sentencing magistrate, from whom an appeal had been brought, had in fact complied with s17A, but it went on to refer to subsection (3) and expressed the view that it had no relevant application. "The sub–section provides that the failure of a court to comply with the provisions of the section does not invalidate any sentence. The provision is not relevant here because the question is not the objective validity of the sentences, but whether, competent appeals having been brought, they should be disturbed for failure of the magistrate to apply it".
I propose to apply what was said in the cases I have reviewed. Section 17A(3) purports to prevent a sentence imposed in contravention of the section from being a nullity, but apart from that it has no effect.
I doubt that the learned magistrate contravened s17A(2)(b) by the mere fact that he may have failed to cause his stated reasons for his sentence to be entered in the formal record of the court. His reasons were recorded by the court in some way and a transcript of them has been provided to this court, for the purposes of the hearing of the application to review the sentence, pursuant to s109(2) of the Justices Act 1959. That, I consider, is sufficient compliance. If I am wrong, it is my opinion that such a technical breach of s17A(2)(b) would not constitute a successful ground for review of the sentence. It would not involve an error in the performance of the sentencing discretion.
I next turn to a consideration of whether the magistrate contravened subsections (1) and (2)(a). The combined effect of these provisions is that not only must the court be satisfied that no sentence other than imprisonment is appropriate in all the circumstances of the case, after having considered all other available sentences, but it must also state the reasons for its decision that no other sentence is appropriate. With respect I agree with the statement of the Full Court in Petreski v Kargill (supra) that "the important thing the section requires is the statement of reasons". In Morgan (1983) 9 A Crim R 289 at 291, Muirhead J said that the provisions are "clearly designed to ensure that offenders against Commonwealth law will not be imprisoned save where imprisonment is regarded as the only appropriate sentence and to ensure that when imprisonment is regarded as appropriate the reasons for the decision are enunciated".
He went on to say that the magistrate, from whom the appeal against sentence had been brought, "did not advert to this section and it is an inevitable inference that he did not have its provisions in mind when he imposed sentence." I do not agree with this last statement as a proposition of law, but suspect that it was made in the context of the express reasons for the magistrate's sentence, which are not set out in the report of the case. I prefer what was said by the Full Court in Petreski v Kargill, that the section does not require express mention of it by the judicial officer who was under a duty to apply it.
With some hesitation I have come to the conclusion that the learned magistrate did not comply with paragraph (a) of subsection (2). The question to be answered is:— What statement of reasons was made by the learned magistrate for deciding (if he did) that no sentence other than imprisonment was appropriate? I can find no such statement. The comment that the offences called for a penalty which would deter the applicant and others could not explain why the learned magistrate decided (if he did) why no sentence other than imprisonment was appropriate. It could equally explain why any penalty might have been appropriate. His Worship's earlier statements might have constituted his reasons for such a decision, but he did not say that they were and in my view the sentencing court must say enough from which it can be concluded, with some confidence, that the relevant decision was made and that the reasons for it were stated.
For these reasons ground 7 has been made out and, all relevant information being in my possession, it is appropriate that I exercise my own sentencing discretion and review the penalty.
I am not satisfied, however, that grounds 2, 4 and 5 have been established. Insufficient was said by the learned magistrate to enable me to conclude that those grounds have been made out.
Ground 3
"The learned magistrate erred in law in that he failed to give any, or sufficient weight to the applicant's age and antecedents and the circumstances in which the offences were committed".
No specific error in this regard has been made out.
Ground 6
"The learned magistrate erred in law in imposing a sentence which was manifestly excessive in all the circumstances".
I am not persuaded that the sentence of three months imprisonment was manifestly excessive. Notwithstanding this, I will now proceed to exercise my own sentencing discretion because ground 7 has succeeded.
Collectively, the offences committed by the applicant were serious for the following reasons. On 24 occasions, over a period of 13 months, he made a false statement in a document to the effect that he had not been in employment. He made that statement knowing it to be false. As the learned magistrate said, what he did could not be characterised as "a brief lapse". He chose to repeat the offence many times. As a result, and also as a result of what is included in the 25th charge, he received unemployment benefit in a total amount greater by $4,310.19 than that to which he was entitled. I do not propose to review the authorities, that task having been carried out in a number of recent cases. One such case was Smith v Gibson, 81/988, a decision of Underwood J in which there was a thorough review. In the course of my consideration of this application, I was for a time minded to re–impose the magistrate's penalty of three months imprisonment. In serious cases of social security fraud, involving the making of false declarations on a number of occasions over a lengthy period of time, the arguments for a prison sentence have considerable weight. If serious cases of such fraud are not punished with imprisonment, the deterrent value of penalties will be lower and the temptation to others to commit such frauds increased. This is a border–line case. But the exercise of the sentencing discretion must be performed with careful consideration in the particular case. In this case I am persuaded, because of mitigatory factors in favour of the applicant, that notwithstanding that it is appropriate in the interests of general deterrence that a sentence of imprisonment should be imposed for the above stated reasons, the applicant should be released pursuant to the provisions of s20(1)(b) of the Crimes Act 1914 upon him giving security without having served any part of the term of imprisonment. The mitigatory factors to which I refer include the following:—
1 The applicant is 53 years of age. He has never been charged with an offence before.
2 He has a history of settled employment. In retrospect his decision to give up that employment and look for a change in his life, was a wrong one. If he had not made that decision it is likely that the offences would not have occurred.
3 He committed the offences when he was going through a period of uncertain employment. I have no doubt that when he commenced to commit the offences he had no resolve to continue them. Having commenced to do so, the continuation was more difficult to resist.
4 The offences were committed at a time when he was going through a most unhappy period of his life because of matrimonial breakdown. As was stated in the pre–sentence report, he was feeling at a low ebb due to that reason, and also because of the loss of full–time employment.
5 He voluntarily desisted from further commission of the offences before detection.
6 Enquiries made by the probation officer reveal that he "is a very genuine and a generally truthful and honest person and that this offence is totally out of character for him".
7 He has shown remorse. A quotation from the presentence report is appropriate:—"Clayton is extremely remorseful and regrets the offences these offences have caused him a great deal of concern".
8 Since the offences the applicant appears to have recovered from an emotionally unstable time in his life. His employment position has improved. In the words of the pre–sentence report he "is currently working in a trusted position at this hotel and has real concerns that if incarcerated for these offences, his reputation in the hotel industry will be tainted forever, and because of the level of contact amongst hoteliers, he will have no show of ever working in this industry again".
9 At the time of sentencing he had developed a relationship with a female friend which appeared to be stable and secure.
One of the terms of his release from imprisonment should be that he repay the amount fraudulently obtained by him. There is little reason to doubt that he will comply with such a requirement. The sentence of the Court of Petty Sessions will be set aside and in its place the sentence will be one of three months imprisonment but it will be ordered that he be released forthwith upon him giving security by recognizance in the sum of $1000 that he will comply with the following conditions:
1 That he will be of good behaviour for a period of three years.
2 That he will make reparation to the Department of Social Security in respect of the offences in the sum of $4,310.19 and that he also pay a pecuniary penalty of $500, the total of $4,810.19 to be paid by instalments of no less than $750 every six calendar months, the first of such instalments to be paid by no later than 1 December 1990.
tasInLaw edit: The judgment has "noncompliance".
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