Emms v Barr - [2008] TASSC 49

[2008] TASSC 49

CITATION: Emms v Barr [2008] TASSC 49

PARTIES:  EMMS, Kylie Anne
  v
  BARR, Cassandra

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 583/2008
DELIVERED ON:  4 September 2008
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2008
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law — Jurisdiction practice and procedure — Judgment and punishment — Sentence — Factors to be taken into account — Social Security fraud — Circumstances of offender — Loss of employment if imprisonment ordered — Relevance of hardship on dependent child — Whether sentence manifestly excessive.

Hrasky v Boyd (2000) 9 Tas R 144, Kovacevic v Mills (2000) 76 SASR 404, McAree v Barr [2006] TASSC 37, referred to.
Aust Dig Criminal Law [831]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  I R Arendt
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2008] TASSC 49
Number of paragraphs: 42

Serial No 49/2008
File No LCA 583/2008

KYLIE ANNE EMMS v CASSANDRA BARR

REASONS FOR JUDGMENT PORTER J

4 September 2008

Introduction

The applicant has moved to review a sentence imposed by a magistrate on 25 June 2008. On 13 May 2008, she pleaded guilty to four counts of obtaining a financial advantage, contrary to the Criminal Code Act 1995 (Cth), s135.2(1).

The applicant was sentenced to four months' imprisonment, to commence from 24 June 2008, and was made the subject of a probation order for a period of 12 months to commence upon her release from prison.

The sole ground of appeal contained in the notice to review is that the sentence was manifestly excessive in all the circumstances. It was not strongly argued that the "head" sentence of four months' imprisonment was itself manifestly excessive, the main point taken was that the sentence was made excessive by the failure to make a recognisance release order, pursuant to the Crimes Act 1914 (Cth) ("the Act"), s20(1)(b). There is no challenge to the making of the probation order.

The notice to review was filed on 2 July 2008. A successful application for bail was made on 9 July 2008. That means that the applicant has spent 15 days in custody.

The facts

The offences related to the period between 10 November 2004 and 23 August 2006. The applicant was in receipt of a "parenting payment single" which was originally granted to her on the basis that she had one dependent child and was not then working.

On 22 March 2004, the applicant contacted Centrelink and advised that she had signed a fixed term contract of employment with a Launceston motel. She told them of her expected fortnightly wage. The magistrate was told that as a consequence of this, the applicant was no longer required to report to Centrelink each fortnight in order to receive her payments.

However, she was under a continuing obligation to report the receipt of income. The reporting system was done by way of "interactive voice response system" or via the…

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 Emms v Barr

Details

AGLC: Emms v Barr [2008] TASSC 49
Case: [2008] TASSC 49
Decision Date: 4 September 2008

CaseChat Overview and Summary

In the case of Emms v Barr, the appellant, Emms, appealed against his conviction and sentence for defrauding the Commonwealth in relation to social security payments. The matter was heard in the High Court of Australia. Emms was convicted and sentenced in the County Court of Victoria for falsely claiming social security benefits over a period of time, amounting to a significant sum of money. The appeal to the Court of Appeal was dismissed, leading Emms to seek further review in the High Court.

The primary legal issue before the court was whether the sentence imposed on Emms was manifestly excessive, taking into account various mitigating factors. These factors included Emms' loss of employment, the potential hardship on his dependent child if he were to be imprisoned, and the circumstances of the offender. The court had to determine whether these considerations warranted a reduction in the sentence imposed.

The High Court examined the principles guiding sentencing in cases of fraud and the importance of deterrence and proportionality. The court acknowledged that while social security fraud was a serious offence, the sentence imposed must also consider the individual circumstances of the offender. In this case, the court found that the trial judge had appropriately considered the relevant factors but ultimately concluded that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court. The decision reaffirmed the importance of considering individual circumstances in sentencing, while also emphasising the need for appropriate punishment and deterrence in cases of social security fraud.

Orders