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 75Magistrates 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…
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CaseChat Overview and Summary
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.
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Background
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