Esplin v Raffan

[2008] WASC 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ESPLIN -v- RAFFAN [2008] WASC 42

CORAM:   McKECHNIE J

HEARD:   26 FEBRUARY 2008

DELIVERED          :   27 MARCH 2008

FILE NO/S:   SJA 1099 of 2007

BETWEEN:   MARK NICHOLAS ESPLIN

Appellant

AND

MELISSA RAFFAN
PAULA MORELAND
Respondents

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE C D ROBERTS

File No  :MI 9158 of 2007, MI 9159 of 2007, MI 9160 of 2007, MI 10894 of 2007

Catchwords:

Criminal law and procedure - Sentencing - Social Security fraud - Whether penalty excessive - No new principles

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondents                 :     Mr A E H Putt

Solicitors:

Appellant:     In person

Respondents                 :     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Harding v Moreland [2006] WASC 8; (2006) 159 A Crim R 370

Lowndes v The Queen (1999) 195 CLR 665

Ralph v Nawrojee [2003] WASCA 5

1. McKECHNIE J:  On 9 October 2007 the appellant pleaded guilty to three charges of obtaining a financial advantage from the Commonwealth and one charge of general dishonesty in respect of the Commonwealth.

2. The three charges related to an overpayment of Newstart allowance in the amount of $31,777.  The appellant had claimed benefits in a false name while receiving a disability support pension over nearly three years.

3. The charge of dishonesty was said to have occurred over nearly a 2 year period when, on 28 occasions, the appellant attended various medical surgeries around Australia and submitted false statements as to his identity resulting in bulk billing to Medicare in the sum of $2,655.85.  More particularly, he gained pharmaceutical benefits on 58 occasions using a false name in the sum of $1,022.29.

4. In short, the magistrate was dealing with sustained and deliberate dishonesty over an extended period yielding a real benefit to the appellant.

5. After hearing a comprehensive plea in mitigation from counsel for the appellant, the magistrate imposed a sentence of imprisonment in respect of each charge with release after 11 months upon entering into a recognisance release order.

6. In respect of the Newstart charges the magistrate said:

   In relation to the three matters (indistinct) you'll be imprisoned for a period of 12 months, but to be released after serving six months upon entering into a recognisance release order in the sum of $2,000 to be of good behaviour for a period of three years.

7. In relation to the Medicare charge the magistrate said:

   In relation to the single charge of defrauding Medicare, where you've assumed a false identity - as I say, considerable planning involved, you'll be imprisoned for 10 months to be released after serving 5 months upon entering into a recognisance release order in the sum of $2,000 for three years.  That sentence is not to begin until after the expiration of the earlier sentence … in effect, is that you have an 11 month sentence.

8. The sentence was irregular to a degree in relation to the recognisance orders.  The matter therefore was recalled on 18 December 2007.  On that date the magistrate imposed concurrent terms of 22 months in relation to each of the four charges and made an order that the offender is to be released after serving 11 months upon entering into a recognisance order; thus the net result remained the same.

9. The appellant lodged an application for leave to appeal on 13 November 2007 before the sentence had been corrected.

10. On 30 January 2008 the court made orders that the application for leave to appeal and the appeal were to be listed and heard together.

The hearing of the application

1. The application was listed for hearing on 26 February 2008 with the appellant to appear by way of videolink.  In the event a videolink was not able to be established and so the appellant was subsequently brought to court to argue his application in person.  The respondent elected to rely on written submissions that had been filed.

Grounds of appeal

Ground 1

1.The magistrate did not order that I was eligible for parole when this should of been done.

1. As the appellant conceded in argument, this ground displays a misunderstanding of the law.  The appellant was sentenced under the Crimes Act1914 (Cth), not under the Sentencing Act 1995 (WA). Having regard to the maximum summary penalty, parole was not available to the appellant. However, a recognisance release order does fulfil some of the attributes of parole including, importantly, the possibility of serving a part of the sentence in the community. In any event, the actual result in respect of the release date would be the same under both sentencing regimes.

2. There is no reasonable case in respect of this ground and leave is refused.

Ground 2

2.The magistrate did not take into consideration my personal circumstances that affected the sentence I was given.

1. Personal matters including the health of his partner, were brought to the magistrate's attention by counsel shortly before sentence.  The appellant reiterated the concerns about his partner in argument before me.

2. In argument, the appellant developed a further submission that the sentence was, in effect, manifestly excessive.  The offences occurred over broadly the same time span.  While the first series of three offences involved $31,000 the second only involved $3,500, he received 10 months' imprisonment for the second offence cumulatively.

3. The appellant may not have fully comprehended the effect of the resentence on 18 December 2007 which notionally equated all the offences with a concurrent penalty of 22 months.

4. However, as the appellant is a litigant pro se I will treat the submission as a general submission that the overall criminality disclosed in the offending behaviour did not justify a sentence of 22 months' imprisonment with a recognisance release order after 11 months.

5. In offences involving fraud on the public purse, general deterrence is a dominant consideration.  The offences are hard to detect, quite prevalent and involve fraud on the whole community, including those who do not abuse the system.  The sentencing principles for social welfare fraud were set out by the Full Court in Ralph v Nawrojee[2003] WASCA 5 [25] - [27] (Anderson J). See also Harding v Moreland [2006] WASC 8; (2006) 159 A Crim R 370. The sentence was well within the exercise of a proper sentencing discretion.

6. These frauds involved a significant total sum.  They took place over a very lengthy period and were only brought to a conclusion when the appellant was found to be driving with a false motor vehicle driver's licence.  In the case of the offences in respect of Medicare, they involved repeated acts of dishonesty.

7. An appellate court can only intervene in the event that error is disclosed: Lowndes v The Queen (1999) 195 CLR 665.

8. Although the sentences might have been structured differently, the critical question is whether the overall sentence is manifestly excessive or otherwise discloses error.  The appellant has failed to establish that the magistrate overlooked important matters, failed to take into account other matters or imposed a sentence that was manifestly excessive.  In fact, having regard to the amount involved, the period involved, and the nature of the repeated deceptions, I consider the sentence well within the range of a sound sentencing discretion.

9. I grant leave to appeal on ground 2 but dismiss the appeal.