Evans v Commonwealth Services Delivery Agency - [2009] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EVANS v COMMONWEALTH SERVICES DELIVERY AGENCY
[2009] SASC 75
Judgment of The Honourable Justice Kelly
20 March 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
Appeal against sentence - appellant pleaded guilty in the Adelaide Magistrates Court to four counts of obtaining a financial benefit contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) - magistrate imposed a sentence of five months imprisonment with release forthwith upon entering into a recognizance to be of good behaviour for a period of fifteen months - whether magistrate erred in failing to give proper consideration to s 17A of the Crimes Act 1914 (Cth) - whether the magistrate erred by deeming submissions put by the prosecution as to penalty to be irrelevant.
Held: appeal allowed - magistrate did not err in describing prosecutor's submissions as irrelevant - magistrate erred in failing to properly consider the requirements of s 17A of the Crimes Act - appellant's offending at lower end of the scale of seriousness - appellant to be released forthwith on entering into a recognizance to be of good behaviour for eighteen months.
Criminal Code Act 1995 (Cth) s 135.2(1); Crimes Act 1914 (Cth) s 17A, s 19B, referred to.
R v Nemer (2003) 87 SASC 168, discussed.
R v Cameron (1993) 171 LSJS 305; Walsh v Department of Social Security (1996) 67 SASR 143; Kovacevic v Mills (2000) 76 SASR 404; Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; Burman v Commonwealth Services Delivery Agency [2004] SASC 224, considered.

EVANS v COMMONWEALTH SERVICES DELIVERY AGENCY
[2009] SASC 75
Magistrates Appeal
Kelly J
Introduction

This is an appeal against a sentence imposed in the Adelaide Magistrates Court on 21 January 2009. The appellant pleaded guilty to four counts of obtaining a financial benefit contrary to Section 135.2(1) of the Criminal Code Act 1995 (Cth). The magistrate convicted the appellant and sentenced her to five months imprisonment with an order that she be released forthwith upon giving security by recognizance in the sum of $10 to be of good behaviour for a period of fifteen months. The magistrate also ordered reparation to the Commonwealth in the sum of $4,174.29.
The appellant appeals against the sentence on the basis that the magistrate erred by deeming the prosecution submissions as to penalty to be irrelevant. On the hearing of this appeal, the respondent not objecting, the appellant applied to amend the grounds of appeal to include a ground that the magistrate erred in failing to give proper or adequate consideration to the provisions of Section 17A of the Crimes Act 1914 (Cth). Permission to amend was granted.
Background
The appellant was in receipt of a Centrelink Parenting Payment Single since 2000. The offending the subject of each of the four counts in respect of which she was convicted, occurred between 21 October 2005 and 6 April 2007. During the relevant period 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 Evans v Commonwealth Services Delivery Agency

Details

AGLC: Evans v Commonwealth Services Delivery Agency [2009] SASC 75
Case: [2009] SASC 75
Decision Date: 20 March 2009

CaseChat Overview and Summary

In the case of Evans v Commonwealth Services Delivery Agency, the appellant challenged the sentence imposed by the Adelaide Magistrates Court after pleading guilty to four counts of obtaining a financial benefit contrary to section 135.2(1) of the Criminal Code Act 1995 (Cth). The central issue in this appeal was whether the magistrate had erred in his handling of the sentencing process, specifically in dismissing the prosecution's submissions on penalty as irrelevant and in not adequately considering the requirements of section 17A of the Crimes Act 1914 (Cth). The appellant argued that the magistrate's failure to properly weigh these factors resulted in an unjust sentence. The court was required to determine if the magistrate's approach to sentencing was legally sound and whether the sentence imposed was commensurate with the nature of the offending.

The court found that while the magistrate did not err in considering the prosecution's submissions on penalty as irrelevant, he did err in not giving proper consideration to section 17A of the Crimes Act. This section mandates that a court must consider the need for the sentence to reflect the seriousness of the offence, promote the rehabilitation of the offender, and provide just punishment. The court held that the magistrate's sentence did not adequately reflect the appellant's offending, which was at the lower end of the scale of seriousness. Given the appellant's clean criminal record and the non-continuous nature of the offending over an 18-month period, the court deemed the five-month imprisonment sentence excessive. Instead, the court found that the appellant should be released forthwith upon entering into a recognizance to be of good behaviour for eighteen months, aligning more appropriately with the principles outlined in section 17A.

The court's decision underscores the importance of a thorough and balanced approach to sentencing, particularly when considering the principles set forth in section 17A of the Crimes Act. The magistrate's failure to adequately weigh these factors necessitated a revision of the sentence. The court's ruling ultimately ensures that the sentence imposed is fair and proportionate to the nature of the appellant's offending.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the sentence on the basis that the magistrate erred by deeming the prosecution submissions as to penalty to be irrelevant. On the hearing of this appeal, the respondent not objecting, the appellant applied to amend the grounds of appeal to include a ground that the magistrate erred in failing to give proper or adequate consideration to the provisions of Section 17A of the Crimes Act 1914 (Cth). Permission to amend was granted. Background The appellant was in receipt of a Centrelink Parenting Payment Single since 2000. The offending the subject of each of the four counts in respect of which she was convicted, occurred between 21 October 2005 and 6 April 2007. During the relevant period the appellant was employed at the Glenelg Community Hospital on a casual basis as a kitchen hand and during the period referred to in the Complaint had earned the sum of $19,552.18. Although she had advised Centrelink of her employment with the hospital, during that period she under-declared her earnings by declaring income totalling $7,454. As a result of the under-declarations the appellant was paid the sum of $4,174.29 to which she was not entitled. The appellant declared her income to Centrelink on a fortnightly basis by means of an automated telephone system. There was no suggestion that the appellant had under-declared her income to the Commissioner for Taxation, rather the offending was detected as the result of an internal Service Profile Review. During the course of that review the Centrelink officers requested payslips from the appellant during the relevant period. A comparison of the appellant’s payslips with the amounts declared by the appellant for the same periods revealed the discrepancies. The length of time in respect of which the appellant under-declared income amounted to approximately six weeks in respect of count 1, a little over four months in respect of count 2, a little under three months in respect of count three and less than four weeks in respect of count 4. The matter was set for trial, but in the week before the trial was due to commence the appellant pleaded guilty. The appellant had no prior criminal history.Discussion The maximum penalty prescribed for each offence is twelve months imprisonment under the provisions of s 135.2(1) of the Criminal Code. The magistrate’s remarks on penalty were brief and to the point. He said:Defendant, I have listened to the submissions made by your counsel. I have taken those submission (sic) on board. I also take into account the Summary of the Facts which have been put to me. First of all, I do not consider that you qualify to be treated with any special consideration as far as not recording convictions is concerned. In my view, you do not qualify. The application that I should not record convictions pursuant to Section 19B is denied and convictions will be recorded.I take into account that this is a course of conduct embarked upon by you over a period of 18 calendar months albeit non-continuous. I take into account, not only the period over which the fraud was perpetrated but also the total amount you received by overpayment.I bear in mind the number of authorities which have dealt with very similar circumstances.What has been put to me on behalf of yourself by your counsel, I take all those matters into consideration without repeating them now.The defendant will be convicted…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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