Eglite v Commonwealth Director of Public Prosecutions - [2010] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EGLITE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2010] SASC 172
Judgment of The Honourable Justice Kelly
11 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant convicted of 18 counts of recklessly making a false statement contrary to s 212 and s 217 of the Social Security (Administration) Act 1999 (Cth) and four counts of obtaining financial advantage contrary to s 135(2)(1) of the Criminal Code Act 1995 (Cth) – sentenced to 24 months imprisonment to be released after serving six months upon entering into a recognizance order – whether sentence was manifestly excessive – whether Magistrate erred in failing to suspend the sentence.
Held: appeal dismissed – no error of either fact or law in Magistrate’s reasons – sentence within an appropriate range – no error demonstrated in exercise of discretion not to wholly suspend.
Social Security (Administration) Act 1999 (Cth) s 212 and s 217; Crimes Act 1914 (Cth) s 16BA and s 4K; Criminal Code Act 1995 (Cth) s 135.2(1), referred to.
Kovacevic v Mills (2000) 76 SASR 404, applied.

EGLITE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2010] SASC 172
Magistrates Appeal: Criminal
KELLY J:
Introduction

The appellant appeals against a sentence imposed in the Adelaide Magistrates Court on 25 February 2010.
On 28 January 2010 the appellant entered pleas of guilty to 18 counts of recklessly making a false statement contrary to s 212 and s 217 of the Social Security (Administration) Act 1999 (Cth). That offence carries a maximum penalty of 12 months imprisonment. At the same time the appellant admitted under the provisions of s 16BA of the Crimes Act 1914 (Cth), a further four counts of obtaining financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of 12 months imprisonment.
The Magistrate imposed a global penalty under the provisions of s 4K of the Crimes Act 1914 (Cth) and sentenced the appellant to 24 months imprisonment. He made an order that the appellant be released after serving six months upon entering into a recognizance to be of good behaviour for 24 months. The Magistrate also imposed supervision conditions as part of the recognizance order.
The appellant appeals against that sentence on two grounds. The first, that the sentence was manifestly excessive and the second that the Magistrate erred in failing to suspend the sentence.
Background
The 18 counts of recklessly making a false statement all relate to the appellant failing to declare to Centrelink his income from employment with Chandler MacLeod Group. The appellant was receiving a Newstart Allowance from April 1996 and was required to complete and lodge each fortnight with Centrelink an application for payment form. The appellant lodged 18 payment applications in which he dishonestly stated that he had not performed any work during the relevant period and that he had received a nil income. During the period of offending the appellant had in fact earned $18,585.90 which he failed to declare to Centrelink. That period of offending extended on a non‑continuous basis for approximately eight and a half months between 5 August 2004 and 29 April 2005.
The four counts of obtaining financial advantage were committed in the period between 5 January 2006 and 29 June 2007. During that period the appellant failed to declare to Centrelink his full income of $7,169.93 which he had received during the same period for employment by four different companies.
The total amount dishonestly received by the appellant from Centrelink was $9,891.50. As at the date of sentencing no reparation had been made, although there was material before the Magistrate that the appellant was making some payment in reparation for earlier overpayments which were not related to the current offending.
The appellant is a 35 year old man with an extensive history of offending including previous offences of dishonesty. One of those offences in 1995 was a fraud against Centrelink in respect of which the appellant was given a suspended sentence.
The current offending was not detected voluntarily but only after data matches undertaken by Centrelink uncovered the fraud.
The matter came before the Magistrates Court 38 times before the appellant entered pleas of guilty on 28 January 2010. It appears from the chronology tendered at the hearing of this appeal that on most of those dates the matter was adjourned because the appellant failed to appear.
Discussion
The appellant complains that in referring to the maximum period of imprisonment that could be imposed for the 18 offences of recklessly making a false statement, the Magistrate has implicitly used that figure as the starting point for sentencing the appellant.
It is plainly evident from the Magistrate’s remarks as a whole that the Magistrate’s references to the period of 18 years was made solely by reference to the statutory maximum for all 18 offences. It is clear that the starting point for setting the head sentence was two years and three months.
In support of the argument that the sentence imposed was manifestly excessive counsel for the appellant submitted that the Magistrate gave insufficient weight to the fact that the appellant was in employment and to the effects that an immediate term of imprisonment would have upon that employment. It was also submitted that the Magistrate did not give adequate consideration to the effect the term of imprisonment would have on the appellant’s dependant. In that regard counsel pointed to the fact that Mr Eglite’s first child had been born immediately prior to sentencing, and that fact in itself constituted good reason for the Magistrate to have suspended the sentence.
While relevant both to the setting of the head sentence and the question of whether any part of the sentence should be suspended, they were, of course, not the only matters the Magistrate was required to consider.
The Magistrate’s sentencing remarks are detailed and thorough. There is nothing in his remarks to suggest that he has overlooked any of the matters put to him relevant to the length of the sentence, or the issue of whether the appellant was entitled to an order for immediate release.
His Honour referred to the authority of Kovacevic v Mills (2000) 76 SASR 404. That is an authority which provides sentencing judicial officers with clear guidelines when sentencing in cases of deliberate and sustained fraud. There can be no question that this was one such case.
Whilst the total amount received by the appellant to which he was not entitled was just under $10,000, nevertheless that offending occurred over an extended period, albeit on a non‑continuous basis, of some eight months. Even after having been charged with the earlier offences the appellant continued to offend for a period of some months thereafter.
Moreover the Magistrate was dealing with an offender who was plainly not entitled to the leniency which might be afforded to a first offender. A perusal of the appellant’s criminal record shows that the appellant has not been deterred from subsequent offending by any of the leniency which has been afforded to him on many occasions over the previous 20 years.
It might be said, indeed as much was conceded by counsel for the respondent, that the sentence was at the upper end of the range available to the Magistrate. However, in light of the appellant’s history considerations of both general and personal deterrence were very important in sentencing the appellant. None of the matters referred to by counsel in submissions persuade me that the Magistrate has either overlooked any relevant matter or made any error of either fact or law which would require the intervention of this Court.
For these reasons the appeal is dismissed.