Eva v Commonwealth Director of Public Prosecutions No. Scgrg-99-233 Judgment No. S185

EVA v COMMONWEALTH DIRECTOR
OF PUBLIC PROSECUTIONS
[1999] SASC 185

PERRY J. The appellant appeals against the sentence imposed upon her in the Magistrates Court sitting at Tanunda following her plea of guilty to a complaint alleging eleven counts of Social Security fraud. Ten of the counts alleged that she knowingly or recklessly made successive false statements in connection with claims for instalments of the Newstart Allowance contrary to s1344(1)(a) of the Social Security Act 1991, and one count alleged that she had knowingly obtained a payment of an instalment of the Newstart Allowance, which was not payable contrary to s1347(b) of the same Act.
Pursuant to s16BA of the Crimes Act 1914, the appellant signed a notice admitting to 34 other counts of knowingly obtaining payments of instalments of the Partner Allowance, by impersonating her husband George Eva, contrary to s1348 of the Social Security Act.
Pursuant to s1353 of the Social Security Act, the learned sentencing magistrate imposed one penalty. He convicted the appellant and ordered that she be imprisoned for eight months. But pursuant to s20(1)(b) of the Crimes Act he ordered that the appellant be released after serving four weeks imprisonment, upon her entry into a recognisance in the sum of $500 to be of good behaviour for eighteen months.
The learned sentencing magistrate also ordered reparation by the appellant in the sum of $12,123.43, which was the total amount involved in the offences, including those to be taken into account.
The appellant contends that the sentence is manifestly excessive and that the learned sentencing magistrate should have ordered her immediate release on a bond.
The appellant is a married woman aged 48 years. She has no prior history of offending. The circumstances leading up to her commission of the offences now in question, as explained to the learned sentencing magistrate by Mr Moore, counsel who appeared on her behalf in the court below, are set out in his affidavit put before me on the hearing of the appeal.
Counsel for the respondent did not challenge any of the matters set out in the affidavit. The following account of the history of the matter is substantially extracted from it.
The appellant is a qualified nurse with a long history of employment in the child care profession. Before the offending in question, she had had more than twenty years full-time work teaching and providing for handicapped children at institutions such as the Challier Centre in Ipswich, the Cootharinga Crippled Children’s Centre at Townsville and various special child care centres in the Northern Territory. In April 1995 she left a highly paid job as a special child care provider at Katherine in the Northern Territory, and moved to Eudunda with her husband. He had shortly before then retired from his position as a tradesman in the Air Force, a position in which he had served for some twenty years.
The appellant’s expectation that she would be able quickly to find work following the move was not realised, and for a number of months she was unable to find local employment. When her husband, who was endeavouring to earn an income as a handyman, found it difficult to produce an appreciable income from that occupation, they soon found themselves in financial difficulties. For the first time in their lives, they sought Social Security assistance.
The appellant was granted the Newstart Allowance and her husband a Spouse Allowance, giving a total combined income of $580 per fortnight.
The ensuing months of unemployment and financial difficulty had a significant impact on their marriage. Their relationship became stressful, the appellant and her husband both finding it difficult to cope with feelings of boredom and frustration, given that they were accustomed to being fully employed and fully occupied.
Against that background, the appellant began playing poker machines, to which she progressively became addicted. To use the expression in Mr Moore’s affidavit, she “unwittingly entrenched herself in the vicious cycle of gambling addiction”.
To finance this addiction, she began to pawn household electrical items, her jewellery, some of her husband’s power tools, and anything else which she could find around the home which she thought her husband would not notice missing. She deceived her husband by saying that she was out looking for work, when in fact she was going to Gawler and Elizabeth to play the poker machines.
It is important to note that there was an earlier incident, predating the present offending, when the appellant wrongly obtained an overpayment of $1,348.32, paid to her between 25 July and 16 October 1995. During that period she falsely advised the Department that she had no casual earnings or continuing income, whereas in fact she was in receipt of an income from the Eudunda Hostel and the Gawler Child Care Centre. Not only did she fail to declare her earnings at the time the payments were made, but she repeated the false information to the Department when interviewed by departmental officers, described as a “departmental mobile review team”, in September 1996. She was not prosecuted for the overpayment, which she repaid in full to the Department when her deception came to light.
In October 1996, the appellant obtained casual employment at Southcorp in the bottling and package division. Unfortunately, she was still unable to stop herself from gambling. Like many gambling addicts, she thought that she might score “one big win” which would compensate her husband for the possessions which she had sold off, and allay her feelings of guilt.
The period of the appellant’s offending with respect to the eleven counts on the complaint extends from 29 October 1996 to 14 April 1997, approximately six months. With respect to the first count, the appellant falsely declared $120 as income from employment when in fact she had earned $739.76 during the relevant fortnight. In counts 2 to 10, the appellant falsely declared to the Department that she was not employed. The eleventh count on the complaint asserts that on 20 December 1996, she knowingly obtained a payment of a Newstart Allowance instalment which was not payable because of the income that she was earning from her employment with Southcorp.
The total overpayment with respect to the counts in the complaint was $3,305.45.
The period of offending covered by the notice setting out the matters to be taken into account was 12 November 1996 to 18 March 1998, approximately one year and four months. The benefit involved was a Partner Allowance of about $290 per fortnight. With respect to the counts set out in the notice, the appellant intercepted fortnightly Social Security forms which were addressed to her husband, and forged his signature on them, again without declaring her employment. She lodged the forms with the Department of Social Security, and on payment of the benefit into their joint account, she withdrew it without her husband being aware that the benefit had been paid. The total amount involved with respect to the counts set out in the notice was a further $8,817.98, leading to the overall total of $12,123.43.
All of the misappropriated moneys were lost in gambling, the appellant’s Southcorp income being used to support the household.
After the matter was detected by the Department of Social Security, the appellant was interviewed. She admitted full responsibility, and gave a candid account of her offending.
It was put to the learned sentencing magistrate that she felt relieved when detected, because she realised by this stage that she had a serious addiction to gambling, and she felt powerless to stop.
Disclosure of the offences had a dramatic effect upon the appellant’s relationship with her husband. Understandably, he felt deceived and disappointed at his wife’s actions and her failure to seek help from him. He gave her an ultimatum to the effect that either she stopped gambling, or she was to leave the house. She chose to stay, and has given up gambling during the intervening period of about six months.
The appellant’s casual work with Southcorp has now become full-time employment. This was said by her counsel to reflect her industriousness and commitment to work.
The appellant earns $480 per week gross, and her husband about $100 to $150 per week, most of which goes directly back into his business. She has three grown children who reside in Queensland, and a number of grandchildren.
The appellant’s counsel emphasised in his submissions to the learned sentencing magistrate that he should recognise and give credit for her plea of guilty, which was made at the first appropriate opportunity, the full and frank admissions which she gave when the offences came to light, and her contrition.
He further emphasised the impact of the offending on her relationship with her husband, and the fact that her employment would be lost if she was imprisoned. She had not waited for a court order to commence reparation, and she had already reduced the outstanding amount by $1,000 by way of instalments of between $50 and $75 per week.
It is obvious from the lengthy ex tempore remarks as to penalty pronounced by the learned sentencing magistrate that he gave careful consideration to all of these matters. Mr Algie who appeared as counsel for the appellant on the hearing of the appeal conceded that there is nothing in the summary by the learned sentencing magistrate of the circumstances leading up to the commission of the offences, and the personal circumstances of the appellant, which could be said to be indicative of error.
Towards the end of his sentencing remarks the learned sentencing magistrate observed:
“I am mindful of the Full Court recently in Cameron v Simounds emphasised the importance of deterrence and indeed the Chief Justice in Dunstan v DSS in Judgment No S5777 reaffirmed that sentencing approach stating that imprisonment is to be expected where there is prolonged offending without special mitigating factors. These last few words beg the question, is an addiction that is unexpected and which is out of control whereby the person is totally incapable of making a rational and reasonable decision, a special mitigating factor? In all the circumstances, whilst I have great personal empathy for this defendant and the tens of thousands of people in our State like her, I must do what I believe is my duty.”
R v Cameron and Simounds[1] concerned an application by the Commonwealth DPP for leave to appeal against sentences imposed in the District Court for crimes of imposition on the Commonwealth. The three respondents had all been convicted of multiple counts involving the giving of fraudulent information to the Commonwealth over a period of time.
[1] (1993) 171 LSJS 305.
During the course of his judgment, speaking of two of the respondents, King CJ observed:
“... the offending amounted to a systematic, deliberate and sustained fraud over a substantial period of time. The fraud involved planning and sustained implementation. The offenders, it is true, have no other convictions but that is of little significance when one is faced with such a sustained course of conduct of a criminal nature. This was not a case of a person with no prior convictions succumbing to temptation and being entitled, therefore, to rely upon the previous good record to secure the leniency of the court. Both of these offenders not only engaged upon a deliberate course of fraudulent conduct, but persisted in it over a long period of time.
The crimes committed are serious crimes. The social security system is the method by which society provides an income to those of its members who, due to misfortune, are not able to provide an income for themselves.
......... Abuse of the social security system jeopardises the system itself and therefore the welfare of all those who depend for their livelihood upon the system. It is the duty of the court to protect the social security system against this type of abuse by making orders which operate as an effective deterrence. ...........
For these reasons the courts have a great responsibility to protect the integrity of the social security system by imposing punishments for deliberate and sustained fraud which are likely to operate as a deterrent to others who may be tempted. ............ It is necessary for the courts to send, and consistently send, a clear signal to all who might be so tempted, that sustained and deliberate fraud upon the system will mean going to gaol.
There are personal circumstances affecting both these respondents which excite considerable sympathy. .......
All these matters are matters of concern to the court and clearly were of concern to the sentencing judge.
Nevertheless, in cases of this kind, that is to say of sustained and deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount. The necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations.”
King CJ went on to observe that it was impossible to identify in the reasons of the learned sentencing judge in that case any specific error. But because he had ordered immediate release, King CJ held that “it must follow” that there had been an error in the sentencing process. He substituted orders which provided for a period of imprisonment for nine months in each case, without interfering otherwise with the head sentences.
Subsequent cases have emphasised that even first offenders of previous good character who plead guilty can expect a custodial term of imprisonment where there is prolonged social security fraud committed over a period of time, unless there are exceptional circumstances.
In Dunstan v Department of Social Security,[2] Doyle CJ said:
“... but the case on appeal really amounts to this: that a first offender with a good record who has pleaded guilty should not be imprisoned. I do not consider that that general proposition can be sustained, particularly in relation to these offences. The court has said over and over again that it must do what it can to deter Social Security fraud, and I must be mindful of that statement.
While it is not decisive, I am influenced by the decision of Olsson J in Flavel v Venning,[3] and by the cases to which he refers. This decision, and the cases to which he refers, do indicate that in cases of prolonged offending imprisonment can be expected, even when the offender has a previous good record. That does not, of course, mean that it is inevitable, but what it does show is that the court has, fairly consistently in such cases, imposed imprisonment.”
[2] Doyle CJ, 7 August 1996, unreported, judgment S5777.
[3] 16 July 1992, unreported, judgment S3507.
Doyle CJ in the same case also referred to observations by Lander J in Fischer v DPP Commonwealth,[4] where Lander J said:
“All of the cases suggest that it would only be in exceptional circumstances that a person convicted of sustained offences involving deliberate fraud of social services legislation would escape a period of imprisonment. It seems to me that a period of imprisonment must be nearly always imposed unless there is some special mitigating feature in the circumstances of the offences, or peculiar to the offender, which would make the imposition of immediate imprisonment not necessarily appropriate.”
[4] 27 September 1995, unreported, judgment S5263.
In this case, regard had to be paid to the appellant’s addiction to gambling. But I do not see that factor, standing alone, as a special circumstance which would serve to take the case out of the ordinary. Regrettably, as the learned sentencing magistrate observed, an addiction to gambling, more particularly to poker machines, is widespread in the community.[5]
[5] See as to the significance of addiction to gambling, R v Martin (1994) 119 FLR 220.
During the course of argument, I was referred to the decision of Mullighan J in Keeley v Department of Social Security.[6] That case involved a young woman who obtained payment of the sole parent pension for a period of about a year, the amount involved being of the order of $11,000, to which she was not entitled in view of the fact that she had married, a fact which she concealed from the Department. In that case, after referring to Cameron and Simounds, Mullighan J, while recognising the emphasis placed in that case upon the deterrent purpose of punishment in cases of this kind, concluded that the special magistrate who had imposed a custodial term of imprisonment had, in doing so, placed too much emphasis upon the deterrent aspect and too little upon the personal circumstances of the appellant. He substituted an order for her immediate release.
[6] 30 July 1993, unreported, judgment S4075.
I do not pause to attempt any summary of the circumstances taken into account by Mullighan J in taking the course which he did in that case. Invariably, there are differences in circumstances from one case to another, and attempts to compare the outcome in one case with the result in another is rarely instructive. What is made clear in R v Cameron and Simounds (supra) and the subsequent cases to which I have referred, is that in the case of a first offender of otherwise good character, Social Security fraud involving repeated acts of deception committed over a period of time and involving a substantial loss to the revenue, will ordinarily be met with a custodial term of imprisonment.
In any event, interference by this Court with a sentence imposed in a lower court will be justified only where the appellant is able to point to an error whether taking the form of a misapprehension of fact or an error of law on the part of the sentencing court, or occasionally where no such error is manifest, where the punishment is so obviously excessive that some latent error must have tainted the sentencing process.
Here, Mr Algie submitted that when the learned sentencing magistrate posed the rhetorical question whether an addiction that is “unexpected and which is out of control whereby the person is totally incapable of making a rational and reasonable decision” is a “special mitigating factor”, the learned magistrate erred in that to approach the matter in that way overlooks the fact that the “special mitigating factor” may be the summation of all relevant circumstances, not limited to one aspect of the matter such as, in this case, an addiction to gambling.
In my view, cases will vary in that in some, a combination of circumstances may amount to sufficient reason to depart from the norm, which is a custodial term of imprisonment, whereas in other cases there may be one single factor which may sufficiently distinguish the case for the purposes of sentencing as to warrant a departure from the norm.
In the passage to which I have just referred, the learned magistrate certainly appears to deny that the addiction to gambling, considered in isolation, was a “special mitigating factor”. But he cannot fail to have had all of the relevant circumstances, including those personal to the appellant and those which surrounded the commission of the offences, in mind. He set out all of those circumstances at considerable length in his ex tempore reasons and must clearly have taken them into account.
The fact of the matter is that although (with a qualification that I will come to) she is entitled to be given full credit for her previous good character, there is little, if anything, to distinguish this case from many others which come before the courts.
The qualification which I have in mind is the fact to which I have already referred, namely, that about a year before the offending in question had commenced between July and October 1995, the appellant committed a systematic fraud on the Department of Social Security by not declaring the earnings which she was deriving from the casual employment in which she was engaged at that time. Although as I have indicated, she repaid the amount in full and was not prosecuted, at that time she came into contact with departmental officers, and the seriousness of her conduct must necessarily have been brought home to her. She was dealt with leniently, in that she was not prosecuted. That she failed to learn from that experience and resumed offending about a year later, is a circumstance of aggravation.

Bearing that in mind, in all the circumstances, I am unable to accept the appellant’s contention that the learned sentencing magistrate fell into error. Furthermore, after the most anxious consideration, I have reached the view that even if I was to exercise the sentencing discretion afresh, I would not feel able to take any other course than to affirm the sentence under appeal.
The appeal must be dismissed.
I so order.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1993) 171 LSJS 305.
Doyle CJ, 7 August 1996, unreported, judgment S5777.
16 July 1992, unreported, judgment S3507.
27 September 1995, unreported, judgment S5263.
See as to the significance of addiction to gambling, R v Martin (1994) 119 FLR 220.
30 July 1993, unreported, judgment S4075.

[1999] SASC 185

12 May 1999