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 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…
The magistrate had been requested during submissions on behalf of the appellant to consider not recording a conviction under the provisions of Section 19B of the Crimes Act. The magistrate plainly turned his mind to that issue and determined that this was not an appropriate case for the exercise of the discretion under s 19B.
During the course of submissions on penalty counsel for the appellant submitted that imprisonment was not the appropriate way to deal with the appellant and the court did not need to consider imprisonment in this case, particularly in the light of the fact that the prosecution had acknowledged that alternatives to imprisonment would amount to adequate punishment in the circumstances of this case. The magistrate responded to that submission by saying that the prosecution attitude to penalty was irrelevant. This exchange seems to be the basis for the complaint that the magistrate erred in law by deeming the submissions put by the prosecution as to penalty to be irrelevant.
The fact that the magistrate responded to the submission made by counsel for the appellant in that way, was, I think no more than a shorthand way of expressing his view that in the circumstances of this case the magistrate considered that the attitude of the prosecutor to sentence was irrelevant. In any event, strictly speaking, the magistrate’s comment was accurate.
In R v Nemer (2003) 87 SASR 168 at [28] Doyle CJ said:
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509–510 per King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso (at 233)
The court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.
The magistrate was entitled to give such weight as he saw fit to submissions made by both counsel for the appellant and counsel for the Director. The magistrate did not err in simply failing to adopt a course that the prosecution did not oppose. The fact that in this case he apparently gave little or no weight at all to the submissions made by the prosecution, is also not an indication of any error. This ground of appeal is not made out.
However, the complaint that the magistrate failed to give proper consideration to the provisions of s 17A of the Crimes Act, is more problematic.
That section states:
17ARestriction on imposing sentences
(1)A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2)Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a)shall state the reasons for its decision that no other sentence is appropriate; and
(b)shall cause those reasons to be entered in the records of the court.
(3)The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4)This section applies subject to any contrary intention in the law creating the offence.
The provisions of s 17A of the Crimes Act impose a requirement upon the magistrate that he actually turn his mind to the question of whether in all of the circumstances any sentence other than a sentence of imprisonment would be appropriate for this offender. It was contended by the respondent that in referring to the period in respect of which the appellant was in receipt of overpayments and the total amount, together with the comment that he bore in mind the number of authorities dealing with very similar circumstances, was evidence that the magistrate had turned his mind to the requirements of s 17A.
In this case the magistrate had received very detailed, if not compelling, submissions about the circumstances in which the appellant had committed these offences. Those circumstances, not challenged by the respondent, are set out in the affidavit of Grahame William Lang sworn on 10 March 2009.
Without going into all of the details, the submissions reveal a picture of a forty nine year old woman who has suffered serious ongoing health problems from an early age. After her marriage broke down in 2000 and while still pregnant with the only child of the marriage, the appellant returned from the United States of America to Australia where she has remained ever since raising her daughter without any support from her former husband. In order to support herself and her daughter she obtained casual employment at the Glenelg Community Hospital where she now has permanent part time work. In addition to that support she obviously relied heavily on Centrelink parenting payments and rent assistance. Notwithstanding the challenges presented by these difficulties, the appellant appears to have maintained an active and responsible working life and at the age of forty eight came before the court as a person with no prior criminal convictions.
Although the offending took place over a period of eighteen months, it appears that the under-declaring of income by the appellant was intermittent and for short periods within that time frame. This was not, as is so often the case, a well planned systematic fraud on the social security system where the appellant falsified records or set up a fictitious identity. Nor did she take any other intentional steps to conceal her actions. Throughout, the appellant continued to fully declare her income to the Commissioner of Taxation. When Centrelink conducted the review the appellant cooperated without any attempt to conceal her true earnings. In those circumstances the magistrate was entitled to take the view that the appellant’s offending was at the lower end of the scale of seriousness.
The magistrate’s comment that he intended to bear in mind the number of authorities which have dealt with very similar circumstances was no doubt a reference to that line of cases such as 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. It is true, as counsel for the respondent pointed out that the more recent authorities have adopted and applied the principle stated in Kovacevic. That principle is that general deterrence is an important sentencing consideration in cases of social security fraud. That is because abuses of the social security system jeopardise the system itself and it is the court’s duty to protect that system by imposing penalties which will act as an effective deterrent.
In Kovacevic Doyle CJ, Mullighan, Bleby and Martin JJ said at [39]-[41]:
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.
In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213.
In some cases the length of the period during which the offending occurs, or the amount involved, or the devices used to effect the fraud, is likely to lead a court to conclude that a sentence of imprisonment actually to be served is required. As is always the case in sentencing, and as Cox J said in R v King, a sentencing standard is a general guide to those who have to sentence in the future, with certain tolerances built into it.
It follows that in the usual course, a sentence of imprisonment is an appropriate starting point, however it by no means inevitably follows that in each and every case a court must impose a sentence of imprisonment.
The circumstances of the appellant’s offending in this case were such that I consider s 17A of the Crimes Act required the magistrate to turn his mind to the specific submission which had been made by counsel for the appellant that other alternatives would suffice and explain even briefly, why those alternatives were rejected. I do not consider the reference in passing to the number of authorities which have dealt with very similar circumstances, necessarily demonstrates that the magistrate did turn his mind to this important question. Nor do I consider that his remark that the prosecution submissions as to sentence were irrelevant, provide any further elucidation as to the magistrate’s reasoning.
As I have remarked earlier, plainly the magistrate did turn his mind to the other principal submission made by counsel for the appellant that she be dealt with by way of a bond without conviction. The alternative submission that a sentence of imprisonment not be imposed, was pressed. It was not opposed by the respondent. In all of the circumstances the failure of the magistrate to state clearly why no other sentence but a sentence of imprisonment was appropriate, is an indication that he either did not turn his mind to the issue or at the very least, he did not give the matter adequate consideration in all of the circumstances. In this respect I consider that the magistrate has erred.
For this reason I consider the appeal should be allowed and I propose to re-sentence the appellant. I take into account the fact that the respondent’s attitude as to sentence, has not changed. The appellant’s offending on any view of the matter, falls at the lowest end of the scale of seriousness for an offence under s 135.2 of the Criminal Code.The respondent’s concession both before the magistrate and on appeal, is perhaps a reflection of the fact that the case is borderline. After taking into account the objective circumstances of the offending together with the appellant’s personal circumstances, in the exercise of my discretion, I consider that in this case there is room for the exercise of mercy and leniency. I recognise that this is an unusual course to take, however I have no doubt that this is the kind of exceptional case to which the Full Court was referring in Kovacevic in the second paragraph of the quotation referred to above.
For these reasons the appeal is allowed and I make the following orders:
1. The appellant is convicted on each count.
2.The order of the magistrate imposing a five month sentence of imprisonment with release forthwith upon entering into a recognizance, is set aside.
3.The appellant will be released forthwith on entering into a recognizance in the sum of $500 to be of good behaviour for a period of eighteen months.
4.The order made by the magistrate as to reparation and costs is not disturbed.