Dwyer v Morgan

[1993] QCA 432

IN THE COURT OF APPEAL [1993] QCA 432

SUPREME COURT OF QUEENSLAND

C.A. No. 315 of 1993.

Brisbane
[Dwyer v. Morgan]

BETWEEN

DANIEL JOHN DWYER
- and -
BARBARA ANN MORGAN

Applicant

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_

The President
Pincus J.A.

Thomas J.

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_

Judgment delivered 06/10/93.

Reasons delivered 15/12/93.

Reasons of the Court

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APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR
LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
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_

CATCHWORDS: CRIMINAL LAW - sentence - applicant defrauded Department of Social Security by obtaining a sole parents pension whilst living in a defacto relationship - failure to advise Department of such relationship - sentence imposed below, six months imprisonment with release after serving two months - applicant young mother with three children - whether sentence manifestly excessive.

Counsel:	Mr C Callaghan for the applicant. Mr D Boyle for the respondent.
Solicitors:	Mr Paul Richards for the applicant. The Director of Public Prosecutions for the respondent.
Hearing Date:	6 October 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 315 of 1993.

Brisbane

Before The President
Pincus J.A.
Thomas J.

[Dwyer v. Morgan]

BETWEEN

DANIEL JOHN DWYER
- and -
BARBARA ANN MORGAN

Applicant

REASONS FOR JUDGMENT - THE COURT

Reasons delivered 15/12/93

These are the reasons given for refusal of an application for an extension of time for leave to appeal against sentence. The application was heard and disposed of on 6 October 1993, but the Court reserved its reasons. That was done because the course taken was to hear the application for leave to appeal against sentence, on the merits.

The applicant was sentenced on 6 August 1993 to a term of imprisonment for social security offences. There was one charge under s. 239(1)(b) of the Social Security Act 1947, and two under s. 1347 of the Act of 1991. The total amount obtained by the applicant was $33,638.90, and the means whereby it was obtained was that the applicant, living in a defacto relationship, refrained from advising the relevant Department of her position, thereby obtaining a sole parent's pension to which she was not entitled.

Only one of the three offences was an indictable offence and it is that with which the Court is concerned. The Magistrate imposed a penalty of six months imprisonment but ordered that the applicant be released after having served two months upon entering into a bond.

It was necessary for the applicant to complete a review form for the Department every 12 weeks and the form was such as, if truthfully answered, to elicit the existence of a defacto relationship. When the true position was discovered, officers of the Department spoke to the applicant and she admitted what she had done. The applicant was ordered by the court to pay restitution. The Magistrate was told that the applicant had an interest in an estate property which was being sold and would produce sufficient to make repayment. The applicant had no previous convictions, was 23 years of age and had three young children; her defacto husband behaved unsatisfactorily, as to providing support.

We were referred to a number of authorities from which it is clear that commonly where substantial sums of money are obtained by fraud from the social security system, a prison term is the result. No doubt this is because such fraud is thought to be prevalent and difficult to detect. Also, the offence is typically (as here) not an isolated incident but involves a continuing deception over a substantial period of time. It is noticeable, however, that women who offend in the relevant way have been more leniently treated than men, a trend which was commented on by Thomas J in the case of Robinson (No. 193 of 1986): see also Hope (No. 70 of 1985), White (No. 411 of 1986) and Baird (No. 129 of 1988). In Hope, where (by a majority) a non-custodial sentence imposed in respect of a 38 year old woman was upheld, Kelly J remarked:

"...had the learned judge in the exercise of his sentencing discretion chosen to impose a custodial sentence and the respondent had then appealed against the severity of that sentence, this Court may well have declined to interfere".

In two of the older cases (Nina (No. 164 of 1977) and Maidment (No. 159 of 1978)), in each of which some thousands of dollars was obtained, a male was sentenced to two years imprisonment, although there were significant mitigating circumstances.

To interfere with the sentence imposed here, it would be necessary to hold that if a young woman, having no previous convictions, and in genuine need of funds, fraudulently obtains a substantial sum in social security payments, a short term of imprisonment is not a permissible sentencing option. In framing the question in this way, we have made an assumption in favour of the applicant (which we think should be made) that she was not at relevant times in a position to obtain money on the strength of her interest in the estate mentioned above. It is, regrettably, evident that abuse of the social security system is fairly common and that to adopt as a rule the proposition just stated would not tend to discourage it, but would rather make social security fraud substantially risk-free for people placed as the applicant is. For these reasons, we refused the application for an extension of time within which to apply for leave to appeal against sentence.