DICKER v MILLS No. SCCRM-99-274 Judgment No. S148 - [1999] SASC 148

DICKER v MILLS
[1999] SCSA 148

Magistrates Appeal (Criminal)

Debelle J (ex tempore)

This is an appeal against sentence.
On 2 March 1999, the appellant pleaded guilty to eleven counts of knowingly or recklessly making a false statement in connection with a claim for a social security payment under the Social Security Act 1991. The false statement was made in respect of unemployment benefits. The appellant had falsely stated on the required forms that he had not done any part-time or casual employment during the period to which each form related when, in fact, he was employed and receiving income from a fencing contractor. The false statement was made on eleven separate forms covering the period 19 December 1997 to 3 July 1998. The appellant also pleaded guilty to two counts of receiving unemployment benefits when he was not entitled to do so. The amount involved in all of these offences totalled $4,537.82.
The magistrate decided to impose one penalty in respect of all of the offences, exercising his powers to do so under s1353 of the Social Security Act. He ordered the appellant be sentenced to a period of eight months imprisonment. He further ordered that the appellant should be released after having served a period of two calendar months imprisonment and be placed on a bond to be of good behaviour for a period of 24 months. The appellant was also ordered to repay the sum of $4,537.82 and to pay costs totalling $118.
The appellant appeals on the ground that the sentence is manifestly excessive. The gravamen of the appeal is not that the head sentence itself was manifestly excessive but, rather, that the magistrate ought to have suspended that sentence and to have ordered the immediate release of the appellant pursuant to s19 of the Crimes Act 1914 (Cth).
The appellant is aged 50 years. He has been married but is now divorced. He has no previous convictions. Before this offending, the appellant had been employed for a period of three years as a meat worker. His income was sufficient to maintain his lifestyle and to discharge his financial obligations, which included payments to a financier in relation to his motor car, rent and an obligation to pay maintenance for children. At the beginning of 1997, his employer encountered financial difficulty and reduced the days in which he could be employed. The appellant was unable to meet all his financial obligations and he fell into arrears. The meat works where he was employed ultimately closed and the appellant's employment was terminated.
The appellant applied for and obtained unemployment benefits but that was not sufficient to pay his financial commitments and he fell further into arrears. He received letters threatening repossession of his motor car and demands from the Child Support Agency. The appellant was able to secure employment with a fencing contractor. Although employed on a casual basis, he regularly worked five days a week for eight hours a day. His income varied from $315…

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.

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Details

Case: [1999] SASC 148
Decision Date: 15 April 1999

CaseChat Overview and Summary

The case of DICKER v MILLS is an appeal against sentence brought before the Magistrates Appeal (Criminal) Court by Debelle J. The appellant, Mr. Dicker, pleaded guilty to eleven counts of knowingly or recklessly making a false statement in connection with a claim for a social security payment, as well as two counts of receiving unemployment benefits to which he was not entitled. The total amount involved in these offences was $4,537.82. The magistrate imposed an eight-month imprisonment sentence, with the appellant to be released after serving two months and placed on a bond to be of good behaviour for 24 months. The appellant was also ordered to repay the sum of $4,537.82 and to pay costs of $118. The appeal was based on the ground that the sentence was manifestly excessive. The appellant contended that the magistrate should have suspended the sentence and ordered his immediate release under s19 of the Crimes Act 1914 (Cth). Mr. Dicker, aged 50, had no previous convictions and had been employed as a meat worker for three years. However, his employer encountered financial difficulties, leading to reduced working days and eventual termination of employment. Unable to meet his financial obligations, Mr. Dicker applied for and obtained unemployment benefits, but this was insufficient. He then secured casual employment with a fencing contractor, but still failed to disclose this employment when claiming unemployment benefits. The appellant's solicitor argued that the magistrate had placed too much weight on the need for general deterrence and given too little weight to the personal circumstances of the appellant. The court considered whether the magistrate had erred in the exercise of his sentencing discretion and whether the sentence was manifestly excessive. After examining the magistrate's reasons and the circumstances of the case, the court found that the penalty ordered was well within the bounds of the magistrate's discretion. The court was satisfied that the magistrate had regarded the personal circumstances of the appellant and that the sentence was appropriate given the nature of the offences. Therefore, the appeal was dismissed.

Orders