Donohoe v Howe (aka Elwell) - [2010] TASSC 7

[2010] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Donohoe v Howe (aka Elwell) [2010] TASSC 7

PARTIES:  DONOHOE, Danny
  v
  HOWE (aka ELWELL), Linda Fay

FILE NO/S:  LCA 945/2009
DELIVERED ON:  15 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  11 February 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Whether penalty in Commonwealth benefits fraud matter manifestly inadequate.

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Matters to be considered when applying the Crimes Act 1914, s19B(1).

O'Brien v Norton-Smith (Mr) Pty Ltd (1995) 83 A Crim R 41; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, applied.
Criminal Code Act 1995 (Cth), s135.2(1)
Crimes Act1914 (Cth), ss16A, 19AC, 19B.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:                   I M Arendt
             Respondent:              C J Gibson
Solicitors:
             Applicant:                   Commonwealth Director of Public Prosecutions
             Respondent:              Zeeman Kable & Page

Judgment Number: [2010] TASSC 7
Number of paragraphs: 31

Serial No 7/2010
File No 945/2009

DANNY DONOHOE v LINDA FAY HOWE (AKA ELWELL)

REASONS FOR JUDGMENT TENNENT J

15 March 2010

On 13 October 2009, having already pleaded guilty, Linda Fay Howe ("the respondent") was dealt with by a magistrate in respect of one count of obtaining a financial advantage contrary to the Criminal Code Act 1935 (Cth), s135.2(1). The learned magistrate did not record a conviction in respect of the charge. Instead, pursuant to the Crimes Act 1914 (Cth) ("the Act"), s19B(1)(d), he required the respondent to enter into a recognizance which required her to be of good behaviour for a period of two years.

The penalty provided for a contravention of s135.2(1) was imprisonment for 12 months and/or a fine of $6,600.

The prosecuting authority ("the applicant") has now sought to review the decision of the learned magistrate. The grounds of review are in the following terms:

"1The Learned Magistrate erred in law by imposing a sentence which was manifestly inadequate in all the circumstances of the case.

Particulars
The sentence imposed does not:
(a) Reflect the Respondent's level of criminality; and
(b) Give sufficient weight to the need for general deterrence.
2The Learned Magistrate erred in fact and in law in holding that the Respondent committed the offence under extenuating circumstances."

Relevant facts

Over the period 14 July 2006 to 13 July 2007, the respondent failed to advise Centrelink that she was living with her partner, and details of his income from employment. As a consequence, she received an overpayment of benefits in the form of a Parenting Payment Single of $13,167.06 during that period. The respondent had been in receipt of a Parenting Payment Partnered from November 1997 to January 1998, and then from May 2005 to December 2005. In December 2005, she separated from her husband and was transferred to Parenting Payment Single. At all relevant times, the payments made to the respondent were made to her financial institution…

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 Donohoe v Howe (aka Elwell)

Details

AGLC: Donohoe v Howe (aka Elwell) [2010] TASSC 7
Case: [2010] TASSC 7
Decision Date: 15 March 2010

CaseChat Overview and Summary

Donohoe v Howe (aka Elwell) involved a dispute in the Magistrates Court of Tasmania concerning the adequacy of a penalty imposed in a Commonwealth benefits fraud matter. The respondent, Donohoe, sought a review of the penalty imposed on the appellant, Howe, under section 19B of the Crimes Act 1914. The primary legal issue the court had to decide was whether the penalty imposed was manifestly inadequate.

In examining the adequacy of the penalty, the court considered the relevant principles and factors outlined in section 19B(1) of the Crimes Act 1914. The court assessed the seriousness of the offence, the culpability of the offender, and the deterrent effect of the penalty. The court also evaluated whether the penalty was proportionate to the offence committed, taking into account both the harm caused and the offender's circumstances. The court's reasoning was grounded in a thorough analysis of these statutory considerations, ensuring a balanced approach to the review process.

Upon reviewing the evidence and arguments presented, the court concluded that the penalty imposed was not manifestly inadequate. The court found that the penalty was proportionate to the seriousness of the offence, reflecting both the harm caused and the culpability of the offender. The court determined that the penalty served an appropriate deterrent effect and was consistent with the principles outlined in section 19B(1) of the Crimes Act 1914. Consequently, the court dismissed the motion for review.

No further orders were made by the court, affirming the original penalty imposed on the appellant. The decision underscores the importance of a comprehensive assessment of the statutory criteria when reviewing penalties in Commonwealth benefits fraud matters.

Orders