Coulson v Chick
[1990] TASSC 40
•16 August 1990
Serial No 37/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Coulson v Chick [1990] TASSC 40; A37/1990
PARTIES: COULSON
v
CHICK
FILE NO/S: LCA 14/1990
DELIVERED ON: 16 August 1990
JUDGMENT OF: Zeeman J
Judgment Number: A37/1990
Number of paragraphs: 42
Serial No 37/1990
List "A"
File No LCA 14/1990
COULSON v CHICK
REASONS FOR JUDGMENT ZEEMAN J
16 August 1990
On 12 June 1990 the applicant, who was represented by counsel, appeared before a magistrate in the Court of Petty Sessions at Launceston and pleaded guilty to six breaches of s239(1)(d) of the Social Security Act 1947 and one breach of s239(1)(b) of that Act.
The learned magistrate imposed fines in the total sum of $4,500.00, made up of fines of $500.00 in respect of each of the breaches of s239(1)(d) of the Act and a fine of $1,500.00 in respect of the breach of s239(1)(b). The learned magistrate allowed a period of 12 months within which the applicant was to pay those fines.
The grounds upon which the review is sought are expressed in the Notice to Review as follows:
"1That the said fines totalling $4,500.00 are manifestly excessive in all the circumstances.
2That the learned magistrate erred in law in ignoring the effect of the totality of the sentence imposed, and thereby imposed a sentence which was crushing in all the circumstances of the case.
3That the learned magistrate erred in law by failing, sufficiently or at all, to take into account the provisions of s239 of the Social Security Act.
4That the learned magistrate erred in law by imposing fines which were beyond the capacity of the applicant to pay, or, in the alternative,
5That the learned magistrate erred in law by failing to give the applicant adequate time to pay the fines.
6That the learned magistrate erred in law by failing to take into account, sufficiently or at all, the substantial mitigating factors and the particular circumstances of the case."
It is appropriate that I summarise the nature of the charges to which the applicant pleaded guilty. Four matters of complaint alleged that the applicant had presented to the Director of Social Security documents each entitled "Application for Continuation of Unemployment Benefits" in which he had falsely declared that his income, or, in one case, the income of himself and his wife, in respect of a particular period, was in a certain amount, when in fact he had earned more than that amount. Two charges alleged that the applicant had presented similar documents to the Director of Social Security in which he had falsely asserted that he had not done any work for remuneration in respect of a particular period.
The final paragraph in the complaint, which alleged a breach of s239(1)(b), needs to be reproduced in full. It was in the following terms:
"That Gary George Coulson between 2.12.88 and 5.1.89 did knowingly receive payment of 2 instalments of Unemployment Benefit in the sum of $814.40 to which sum he was not entitled."
Grounds one and two set forth in the Notice to Review conveniently may be dealt with together. Essentially they assert that the fines imposed were individually manifestly excessive and, upon an application of the totality principle, together constituted a penalty which was manifestly excessive.
In dealing with these grounds the course of the proceedings before the learned magistrate, and the material before him, require close examination. Such an examination discloses that there were significant deficiencies in the material placed before the learned magistrate. To some extent, those deficiencies were occasioned by the learned magistrate not receiving the assistance to which he was entitled from counsel who appeared before him.
Before the learned magistrate, counsel for the complainant stated the facts in the following terms:
"The defendant was in receipt of unemployment benefits at the married rate between 28 December 1987 and 21 April 1989. Between 6 July 1988 until at least 4 May 1989, the defendant was employed at Idlewilde by Mr Alfred Edgecombe. His wife was employed at the same business between approximately the same dates. With respect to the first three charges on the complaint, some earnings on this employment were declared by the defendant. He declared some earnings of both himself and his wife on the first occasion and then some of his earnings on the next two occasions, but failed to declare the full extent of his income. Following that, the defendant failed to declare any income from employment on his application for continuation forms. The defendant and his wife each earned between $180.00 and $400.00 per week and in that period earned up to $400.00 per fortnight by way of unemployment benefits, that's one sum if it please, it's not paid by (sic) the defendant and his wife. The total overpayment received as the result of the offences was $2,732.16. The defendant has completely repaid that sum by $100.00 instalments, which I understand were paid directly by the defendant to the Department rather than being by way of deduction from some other source, which is often the case, they're often a forced deduction, a forced repayment, and that wasn't the case in this instance. The defendant was interviewed by officers of the Department, in which interview he admitted the offences, and I would tender that interview to your Worship. There are no prior convictions."
The record of interview was duly tendered.
A number of things might be said about that statement of the facts. Whilst counsel for the respondent informed the magistrate of the total of the various overpayments which had been made to the applicant, she did not provide any information as to what amount had been overpaid as the result of each specific breach of s239(1)(d). Such information was important in the sentencing process, particularly if, as was the case, the magistrate was minded to impose a separate penalty in respect of each breach of the Act. By way of example, the first paragraph in the complaint asserts as false a declaration on the part of the applicant "that he and his partner had earned the sum of $370.00 when in fact he earned more than that amount." At no time was the learned magistrate told, nor did he enquire, as to the amount by which the relevant earnings had exceeded $370.00. Determining a specific penalty for that offence necessarily involved an assessment of the degree of criminality involved which in turn required the learned magistrate to have regard to the extent to which the applicant had understated earnings. For all the learned magistrate knew the first charge might only have involved an understatement by an insignificant amount.
The statement by counsel for the respondent before the magistrate that the applicant "admitted the offences" during the course of the interview the record of which was tendered is not borne out by an examination of the record of that interview. The complaint alleged eight offences (one of which was dismissed after a plea of not guilty) and only five of those offences (including the offence in respect of which the complaint was dismissed) are the subject of discussion during the course of that interview. In other words, three of the offences to which the applicant pleaded guilty were not the subject of any discussion during the interview, and certainly not the subject of any admission made during the course of it.
As to the matters of complaint which were the subject of the interview, it was an overstatement to assert that the offences were admitted. As to two of the matters, the answer recorded as having been given by the applicant was equivocal. As to the other matters, no admissions were made, the thrust of what is recorded as having been said being that the applicant could not remember whether the allegations put to him were correct or not.
In my view, where counsel tenders a document, representing it to record admissions made by a defendant that such defendant has committed particular offences, it is incumbent upon counsel to satisfy himself that he accurately represents the import of the document. One wonders whether counsel, or indeed the learned magistrate, gave any consideration to the content of the record of interview.
I record that the defects in the statement of the facts made by counsel for the respondent to the learned magistrate were not cured by any of the material contained in the record of the interview with the applicant. Counsel for the respondent did not advert to the particulars of the offences during the course of his submissions.
What then are the obligations of a sentencing tribunal when faced with having to discharge its duty to impose a proper sentence when the material placed before it by the parties is inadequate to enable it to properly discharge that duty?
This court has on various occasions considered whether the failure on the part of the sentencer to obtain a pre-sentence report has vitiated the exercise of the sentencing discretion (Conlan v Arnol [1969] Tas SR 194 (NC9), Emery v McGowan [1971] Tas SR 163, Suckling v Ling [1973] Tas SR 106 (NC4) and Murray v Harris No 33/1974). Such a failure may result in the materials before the sentencer being "insufficient to enable him to properly consider all the factors which he is required to consider before passing sentence" (per Green CJ in Hrvojevic v The Queen No 24/1979).
Those cases may be said to be but examples of a more general principle and indicative of a duty on the part of the sentencer to endeavour to have before him such materials as are sufficient to enable him to properly exercise the sentencing discretion. This does not mean that the sentencer is to perform a general inquisitorial role. The nature of what ought to be done will depend upon the circumstances of the case. An obligation may well arise more readily where a defendant is not represented by counsel. If, as occurred in the present case, the statements of the offences as particularized in the complaint themselves raised questions which needed to be answered, then, as a minimum it was incumbent upon the magistrate to make some enquiry from counsel.
One observation may be made about the form of the complaint. The final paragraph in the complaint, alleging the breach of s239(1)(b), appeared to offend the provisions of s239(4) of the Act. Counsel for the respondent told me that, as a matter of policy, two or more offences under s239(1)(b) of the Act were charged in one paragraph in complaints upon the basis that if a plea of not guilty were entered, an amendment would be sought to the complaint to charge each offence in a separate paragraph. It may be that such a policy has been adopted in a commendable way to ameliorate the penalty provisions. However, such a policy is contrary to an express provision in the Act. In some cases the policy may work an injustice in so far as a defendant who is considering his plea is concerned.
During the course of the proceedings before me, I made an order, by consent, that the paragraph in the complaint charging a breach of s239(1)(b) be amended by being deleted and substituted by two new paragraphs, each charging the receipt of one instalment of unemployment benefit.
Counsel for the applicant addressed the learned magistrate in mitigation. During the course of that submission, he advised the learned magistrate of the financial circumstances of the applicant and his wife, provided character references and offered explanations for the conduct the subject of the complaint including significant mitigatory material relating to the uncertain and intermittent nature of the employment of the applicant at the time the offences were committed and to the serious health problems suffered by the applicant.
Amongst other things, counsel for the applicant told the learned magistrate that each of the applicant and his wife were employed by the Rochecombe Vineyard and that each earned $580.00 per week clear. I was told that that had been stated in error, and that in fact the joint income of the applicant and his wife was $580.00 per week clear at the time the applicant appeared before the magistrate.
There were other unsatisfactory features of the proceedings before the learned magistrate. However, the matters to which I have referred are sufficient to indicate that for the magistrate to proceed upon the materials before him created a grave risk that a significant injustice would be visited upon the applicant.
In that state of affairs, I was invited to receive the further evidence. Section 110(2) of the Justices Act 1959 empowers me to receive further evidence. That discretion is to be sparingly exercised. A consideration of the nature of a review under s107 of the Justices Act is indicative of the circumstances in which further evidence may be received being necessarily severely circumscribed (see Gower v Roffe No 38/1966, Pulfer v Fletcher No 37/1966, and Cleaver v Powell [1979] Tas R 134 at 136).
I was asked to receive, by way of further evidence, an agreed statement of fact as to the true earnings of the applicant and his wife at the time of the hearing before the learned magistrate. The authorities to which I have referred would permit such evidence to be received. There being consent from the respondent, I received that statement as further evidence.
Counsel for the respondent tendered by consent significant statistical data as to sentences imposed by courts in Tasmania for breaches of the Social Security Act 1947. Strictly speaking, that may not be further evidence within the meaning of s110(2). The true nature of such data is that it is material from which a "tariff" may be gleaned and therefore material putatively available to, and required to have been taken into account by, the learned magistrate, albeit that I have received it in a convenient form. Such material was received by Underwood J in R v O'Brien No 43/1987. At the same time, the need to use caution in the use of such statistical information, expressed by several members of the court in R v Barber (1976) 14 SASR 388, must be borne in mind. At best, such information, unless prepared in a most sophisticated form, can only be a very general guide to sentencing trends. The absence of a right of appeal on the part of the prosecution, seen as a factor militating against the value of such material in R v Barber, is not a relevant factor in this State.
It is appropriate that I make specific reference to one fine, namely the fine of $1,500.00 in respect of the breach of s239(1)(b) of the Act. As I have indicated, that charge really was constituted by two separate offences of the applicant receiving two separate instalments of unemployment benefit to which he was not entitled. For some reason, applications by the applicant in respect of those payments of unemployment benefit were not the subject of any charge. That may be because no false statement on the part of the applicant was involved or perhaps because he made no applications at all. On the other hand, the statement of facts made it plain that as a result of the breaches of s239(1)(d) of the Act, i.e. making false statements, there were made to the applicant payments to which he was not entitled, although the receipt of those payments was not the subject of further charges. The position was that each payment of unemployment benefit made to the applicant, but to which he was not entitled, was the subject of a charge. The respondent chose to lay the charge under s239(1)(d) in respect of some transactions, thereby complaining of the claim for the payment, but chose to charge the applicant under s239(1)(b) in respect of other transactions thereby complaining of the receipt of the payment.
One might consider that it would be difficult to differentiate between the charges under the various provisions, except upon the basis that there was no material before the magistrate to indicate that the breaches of s239(1)(b) involved any false representation. If that was the case one might take a less serious view of those offences.
Rather surprisingly, the learned magistrate chose to take a more serious view of the breaches of s239(1)(b) in that in respect of the one charge under that provision, which in its terms related to two separate receipts, he imposed a fine of $1,500.00 compared with fines of $500.00 in respect of each of the other charges. That differentiation in itself tends to point to some error in the reasoning process. The learned magistrate did not express any reason for such differentiation.
In making his comments upon sentencing the applicant, the learned magistrate said little by way of explaining his reasons for deciding to impose the penalties which he did impose. Having discounted imprisonment as a sentence, he said this:
".... a penalty ought to be imposed and it ought to be a penalty containing a sufficient element of deterrence to let you know, and others who may find themselves tempted to put themselves in your position, that quite frankly in the old adage, crime does not pay."
A consideration of the sentencing statistics indicates that the fines imposed upon the applicant were significantly higher than those imposed in Tasmania on any other recorded offender upon whom a fine was imposed. If one compares the ratios of fines imposed to amounts overpaid, the discrepancy becomes even greater. In a statistical sense the fines imposed upon the applicant amounted to an aberration.
Upon the material before the learned magistrate (after correcting the income position of the applicant and his wife) the applicant and his wife had a combined net weekly income, after meeting instalments on long term loans, of $488.00. The learned magistrate was told nothing of their assets nor of their expenditure in respect of costs such as housing, transport, food or clothing. He was told that they had no dependents.
It is necessary to remember that the learned magistrate was sentencing the applicant and not his wife. He was not told as to what proportion of the weekly earnings was that of the applicant. Be that as it may, I can infer that the applicant was a man of very modest means. The imposition of a fine of $4,500.00 upon such a person may be fairly described as a crushing burden if not a calamity.
It is, of course, trite that it is not just a matter for me to determine what sentence I would have imposed upon the applicant. An appeal against sentence is subject to the well–known limitations expressed in House v R (1936) 55 CLR 499. However, I have come to the conclusion that on any view the fines totalling $4,500.00 constituted a total penalty which was plainly manifestly excessive. The applicant was a person of previous good character, possessed of modest means, and there were significant mitigating factors, including the fact that he had repaid all amounts overpaid. A useful review of the approach taken to sentencing for offences of this nature under the Social Security Act appears in Smith v Gibson No 8/1988.
In the light of the conclusions which I have reached, it is not necessary to express any separate views as to grounds 4 and 6, and the matter asserted by ground 5 no longer arises. It is, however, appropriate that I make some observations as to ground 3. Counsel for the applicant submitted that the effect of s239 was that it prohibited the imposition in respect of all the offences of which the applicant was convicted a fine or fines totalling in the aggregate a sum greater than the sum of $2,000.00 specified by s239(2). For that proposition, he cited R. v Brown (1982) 5 A Crim R 404 and particularly cited the following passage from the judgment of Forster CJ appearing at p.407:
"I respectfully agree with the learned judge and with Goddard CJ in Batchelor (1952) 36 Cr App R 64 when, in dealing with the common practice of taking into account offences not mentioned in the indictment, he said, 'It usually means a longer sentence but the total punishment does not usually exceed what would be the maximum for one offence of that class.' In the present case the appellant was fined a total of $3,300.00, considerably higher than he might have been fined for any one of the offences of which he was convicted. This alone, quite apart from the mitigating circumstances I mention above, is sufficient in my view to establish that the total of the penalties imposed demonstrated a departure from principle and was manifestly excessive.
In a number of unreported decisions of this Court it has been held that, save in special circumstances, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, cumulative penalties should not be imposed, and many sentences passed from day to day have demonstrated adherence to this principle. The principle has not the same force when fines are involved rather than periods of imprisonment but it is still a consideration in a former case."
I do not consider that passage to be authority for the wide and rigid proposition submitted by counsel for the applicant. Certainly I would not consider that the sentencer's discretion is as rigidly circumscribed as counsel's submission suggests.
It follows that I quash the sentences imposed by the learned magistrate. Both counsel are agreed that I should sentence the applicant afresh. In anticipation of my quashing the sentences imposed below, I heard both counsel as to sentence.
In addition to what had been put before the learned magistrate, counsel for the respondent placed further facts before me. It appeared from those facts that the overpayments which had resulted from the false statements made by the applicant were in the sums of $130.20, $336.70, $246.66, $400.20, $284.00 and $300.00 respectively. The two payments received which were the subject of charges under s239(1)(b) were in the sums of $400.20 and $414.20 respectively. I note that the total amount of the overpayment involved was $2,512.16. The learned magistrate had been told that it was $2,732.16.
In mitigation, counsel for the applicant put further material before me as to significant financial commitments on the part of the applicant which existed at the time the applicant appeared before the learned magistrate but which material was not placed before the magistrate.
Until the commission of these offences, the applicant had been a person of good character. He is a married man living with his wife, aged 46, having three children, none of whom are now dependent upon him. Their financial resources are not extensive. They own a partially completed house in which they reside and which they have been building very slowly. He is in employment, as is his wife. It is the same employment as that referred to before the learned magistrate. Prior to appearing before the magistrate, he had repaid all overpayments by regular instalments. Between them the applicant and his wife, after meeting fixed commitments, have some disposable income. Since the fines were imposed they have saved $600.00 towards them. They have no other savings. The applicant has suffered from a severe health problem, which has resulted in significant disfiguration and psychological and functional disabilities. He suffers from severe anxiety at the possibility of the appearance of his disease in other parts of his body. To some extent the offences were committed in ignorance, although I do not accept counsel's submission that that provides a complete explanation. A number of referees have spoken highly of the applicant. The offences were intermittent at a time when his employment, and the employment of his wife, were of a casual nature, with periods of work interspersed with significant periods when their services were not required.
I agree with the learned magistrate that this is a case where a fine is an appropriate penalty. It is open to me to impose one penalty on the whole complaint by virtue of the provisions of s239(6). I consider that to be the appropriate course. It will generally be the preferable course to impose one penalty where there is a series of similar offences under s239. It is a course which will more readily enable the sentencer to appreciate the totality of the penalty being imposed on the offender and which will more readily enable the penalty to be proportionate to the criminality of the total course of conduct.
The penalty I impose is a fine of $750.00. I order that in default of payment, the applicant will serve thirty days' imprisonment. In making that latter order, I reject the submission that the provisions of the Justices Act 1959 as to the imprisonment of offenders in default of the payment of fines do not apply. I reject that submission because of the amendment to s239(10) effected by the Social Security & Veterans Affairs Legislation Amendment (No 4) Act 1989. In determining the appropriate fine, I have, of course, taken into account the financial circumstances of the applicant as required by s16(C)(1) of the Crimes Act, 1914.
I will hear counsel as to time to pay.
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