Coulson v Chick - [1990] TASSC 40

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 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.

Continue reading Coulson v Chick

Details

AGLC: Coulson v Chick [1990] TASSC 40
Case: [1990] TASSC 40
Decision Date: 16 August 1990

CaseChat Overview and Summary

Coulson v Chick is a case where the Supreme Court of Tasmania reviewed the sentence imposed on Gary George Coulson by a magistrate in the Court of Petty Sessions at Launceston. Coulson had pleaded guilty to six breaches of section 239(1)(d) and one breach of section 239(1)(b) of the Social Security Act 1947. The magistrate imposed a total fine of $4,500, which Coulson sought to have reviewed on the grounds that the fines were manifestly excessive, the magistrate ignored the effect of the totality of the sentence, failed to consider the provisions of section 239, and imposed fines beyond Coulson's capacity to pay. The court considered the inadequacy of the material presented before the magistrate, which was partly due to the respondent's counsel not providing sufficient information. The court found that the fines imposed constituted a total penalty that was manifestly excessive, and quashed the sentences imposed by the magistrate. The court imposed a new penalty of a fine of $750, with an order for thirty days' imprisonment in default of payment.

The court examined the reasoning process of the magistrate and found it lacking in several aspects. The court noted that the material presented before the magistrate did not provide specific information about the amount by which the relevant earnings had exceeded the declared amounts, which was important in determining the degree of criminality involved. The court also found that the statement made by the respondent's counsel before the magistrate that the offences were admitted was not accurate, as the record of the interview with Coulson showed equivocal answers and no admissions in some cases. The court held that 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. The court also found that the form of the complaint charging a breach of section 239(1)(b) offended the provisions of section 239(4) of the Act, and ordered that the paragraph be amended by being deleted and substituted by two new paragraphs, each charging the receipt of one instalment of unemployment benefit.

The court considered the financial circumstances of Coulson and his wife, and the significant mitigating factors, including the uncertain and intermittent nature of the employment of Coulson at the time the offences were committed and the serious health problems suffered by Coulson. The court found that the imposition of a fine of $4,500 on Coulson, who was a person of previous good character and possessed of modest means, may be fairly described as a crushing burden if not a calamity. The court also found that the fines imposed upon Coulson amounted to an aberration when compared to the sentencing statistics in Tasmania for breaches of the Social Security Act 1947. The court held that the fines totalling $4,500 constituted a total penalty which was plainly manifestly excessive. The court quashed the sentences imposed by the magistrate and imposed a new penalty of a fine of $750, with an order for thirty days' imprisonment in default of payment.

Orders