Cruse v Treminio

[2001] ACTSC 59

WENDY CRUSE v RICARDO TREMINIO [2001] ACTSC 59 (22 June 2001)

CATCHWORDS

CRIMINAL LAW – sentencing – social security offences – whether sentence requiring actual service of some period of imprisonment required save in special or exceptional circumstances – whether such a sentence an appropriate “starting point” – principles applicable on Crown application to review sentence due to perceived leniency.

R v Van Tung Luu (CCA 7 December 1984, unreported

R v David Fernanda Medina (CCA 28 May 1990, unreported

R v Mears (1991) 53 A Crim R 141

R v Jennifer Rose Purdon (NSW CCA 27 March 1997, unreported

Kovacevic (2000) 111 A Crim R 131
R v Tait (1979) 46 FLR 386
R v Cobb (1999) 84 FCR 450

On appeal from the Magistrates Court

No. SCA 32 of 2001

Judge:          Crispin J
Supreme Court of the ACT
Date:           22 June 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCA 32 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:WENDY CRUSE

Applicant

AND:RICARDO TREMINIO

Respondent

ORDER

Judge:  Crispin J
Date:  22 June 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The sentences of the Chief Magistrate be confirmed.

1. On 27 April 2001 I ordered the respondent to show cause why a decision of the Magistrates Court made on 30 March 2001 should not be reviewed.  In the proceedings before the Magistrates Court the respondent had pleaded guilty to two offences of knowingly obtaining payments of social security benefits which had been payable only in part.  One offence had related to the receipt of NewStart allowance payments between 9 January 1996 and 19 March 2000 whilst the other had related to similar payments made between 20 March 2000 and 14 August 2000.  As a consequence of these offences the respondent received, in all, $36,914.90 to which he had not been entitled.  The offences had been maintained over a period of approximately 4½ years during which the respondent had been employed as a cleaner but had failed to declare such employment on any of the forms which he had apparently been required to submit at fortnightly intervals.  The Chief Magistrate imposed a suspended sentence of nine months imprisonment on one charge and fined the respondent the sum of $1,000 on the other.

1. On the hearing of the review Mr Lalor, who appeared for the applicant, submitted that the sentences imposed were manifestly inadequate and argued that the Chief Magistrate had failed to apply the principles properly governing sentencing for offences of this nature.

1. Mr Lalor relied upon successive decisions of the New South Wales Court of Criminal Appeal to the effect that in the case of a fraud upon the social security system a custodial sentence should be imposed unless there were very special circumstances justifying some lesser order.  See R v Van Tung Luu (CCA 7 December 1984, unreported) at 3;  R v David Fernanda Medina (CCA 28 May 1990, unreported) at 4, R v Mears (1991) 53 A Crim R 141 at 145;