Feenstra v Pomare
[2017] WASC 344
•19 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FEENSTRA -v- POMARE [2017] WASC 344
CORAM: ARCHER J
HEARD: 21 NOVEMBER 2017
DELIVERED : 19 DECEMBER 2017
FILE NO/S: SJA 1041 of 2017
BETWEEN: BONNY FEENSTRA
Appellant
AND
KELLY ANNE POMARE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M J WALTON
File No :PE 68239 of 2016
Catchwords:
Criminal law - Appeal against sentence - Social security fraud - Prosecution appeal - Whether s 19B Crimes Act 1914 (Cth) discharge manifestly inadequate
Legislation:
Crimes Act 1914 (Cth), s 4AA, s 4B(2), s 19B, s 20(1)(b), s 21B
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Criminal Appeals Act 2004 (WA), s 9
Criminal Code 1995 (Cth), s 135.2
Result:
Leave to appeal granted
Appeal allowed
Section 19B order set aside
Respondent to be resentenced
Category: B
Representation:
Counsel:
Appellant: Ms E J Martin
Respondent: Ms N R Sinton
Solicitors:
Appellant: Director of Public Prosecutions (Cth)
Respondent: Legal Aid (WA)
Case(s) referred to in judgment(s):
De Faria v The State of Western Australia [2013] WASCA 116
Gok v The Queen [2010] WASCA 185
Guerrero v Dickson [2013] WASC 246
Moreland v Snowdon [2007] WASC 137
Ninyette v Holmes [2015] WASC 287
R v Tsiaras [1996] 1 VR 398
The State of Western Australia v Wilson [2015] WASCA 119
Wilson v The State of Western Australia [2010] WASCA 82
WS v Gardin [2015] WASC 97
ARCHER J:
Background
The respondent, Ms Pomare, pleaded guilty to one count of obtaining a financial advantage under s 135.2(1) of the Criminal Code 1995 (Cth).
On 3 March 2017, Magistrate Walton heard the facts and submissions on sentence from the prosecution, as well as a plea in mitigation from the counsel who appeared for the respondent (not counsel in this appeal). The magistrate initially made a conditional release order under s 20(1)(b) of the Crimes Act 1914 (Cth). He sentenced the respondent to 6 months' imprisonment and ordered that she be released forthwith upon her entering into a recognisance in the sum of $1,000 to be of good behaviour for six months.
Counsel for the respondent then made an application, which the magistrate interpreted as an application under s 19B of the Crimes Act. Section 19B permits the court to discharge an accused without proceeding to conviction if certain conditions are met. The magistrate adjourned the matter to give the parties time to file written submissions as to whether a s 19B order should be made.
On 26 May 2017, having received written submissions from both parties, the magistrate removed the 3 March orders, and made a s 19B order. He ordered the respondent be discharged without conviction upon her entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of 12 months.
The prosecution seeks leave to appeal against the s 19 order.
The application for leave was ordered to be heard at the same time as the appeal.
Legal principles - s 19B of the Crimes Act
Section 19B of the Crimes Act relevantly provides:
(1)Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
(d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs ‑ by specified instalments as provided in the order; and
(iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
In Guerrero v Dickson,[1] Hall J set out the relevant principles to be applied in determining whether to make an order under s 19B. I adopt his Honour's analysis. In particular, I note the following:
1.Orders under s 19B of the Crimes Act are exceptional in nature.
2.Section 19B involves a two‑stage test.
3.First, the court must consider whether there is information that falls under any of the criteria listed in s 19B(1)(b)(i), (ii) or (iii).
4.If there is such information, the second stage arises. The court must then consider whether, having regard to that information, it is inexpedient to inflict any punishment or to inflict only nominal punishment or it is expedient to release the offender on probation without recording a conviction. This second stage necessarily involves a consideration of the seriousness of the offence, the prevalence of the offence and general deterrence.
[1] Guerrero v Dickson [2013] WASC 246 [31] ‑ [42].
Facts of the offence
The respondent was receiving a social security benefit called 'Parenting Payment Single'. Between 9 June 2011 and 17 December 2013, the respondent intentionally misrepresented her true circumstances and failed to correctly declare the amount of her employment income to Centrelink.
During the period of offending, the respondent was employed on a full‑time basis. Throughout the offending period, the respondent earned a total of $94,687.87 gross. During the offending period, the respondent declared to Centrelink only $16,951.14 gross income. This was approximately 18% of her actual gross income.
During the offending period, the respondent reported on a fortnightly basis. With one exception, she reported by using the online web application. She declared her income to be $510 on five occasions, and at less than $400 on each other occasion. In the last 43 fortnights, she declared her income to be $185.
As a result of her conduct, the respondent obtained social security payments to which she knew she was only partially entitled. The respondent was overpaid an amount of $28,202.18 over the offending period.
The offence was detected by way of a data match with the Australian Taxation Office and subsequent investigation by Centrelink.
The respondent was invited to participate in a formal interview. She agreed to do so. Several attempts were then made to contact her to arrange a suitable time, but no response was received.
The respondent pleaded guilty at the earliest reasonable opportunity.
Personal circumstances
The respondent was 31 years old when the offending began. By the time of sentence, the respondent was 36 years old. She was a single mother of three boys.[2] The eldest was a young adult at the time of the sentencing. The middle boy was in a catholic school due to his aptitude in rugby. The youngest boy has autism.
[2] In the written submissions filed on behalf of the respondent in the Magistrates Court, it was said that she had three sons but that one was an adult: Submissions in Respect of s 19B Application dated 17 March 2017 (Accused's Submissions), [11(l) ‑ (n)]. However, when the magistrate said that she had three children (ts 5 ‑ 6, 26 May 2017), the respondent's counsel corrected him, saying she had two.
The respondent was employed, earning $630 per week. On an unknown date, she developed a lower back injury as a result of a workplace injury.[3] For an unknown period of time, she was receiving $500 per week in compensation payments instead of her regular wages. This made it hard for her to manage her financial obligations, which included car payments, a personal loan, a credit card debt, and her eldest son's private school fees.
[3] Accused's Submissions, [11(q)(v)]. She apparently later received $35,000 in compensation: [11(q)(v)].
It was submitted that this 'caused Ms Pomare significant stress and to have depressive thoughts'.[4] This was apparently advanced as part of the background to explain her position at the time of the offending. It was not suggested that she suffered from an actual mental illness.[5] In particular, it was not suggested that she suffered from any mental health issue that would be relevant to the sentencing process in one of the ways identified in R v Tsiaras.[6]
[4] Accused's Submissions, [14].
[5] See also Accused's Submissions, [11(u)].
[6] R v Tsiaras [1996] 1 VR 398, 400, approved by the Western Australian Court of Appeal in various cases, including Gok v The Queen [2010] WASCA 185 [54].
At the time of sentencing, the respondent was in good physical health.[7] She did not suffer from any diagnosed mental health condition.[8]
[7] Accused's Submissions, [11(t)].
[8] Accused's Submissions, [11(u)].
The respondent was of otherwise good character. She had only traffic convictions on her criminal record.[9] She had been working while being a single parent.[10] She had 'made her own way in life' despite a disadvantaged childhood.[11] Several character references were provided. The magistrate accepted that she was of (otherwise) good character.
[9] It is not clear what the full extent of those convictions are. The respondent is apparently also known as Kelly Anne Rollo, and there are seven traffic convictions in that name, none of which appear on the record in the respondent's name Kelly Anne Pomare.
[10] Counsel for the respondent orally submitted on 3 March 2017 that her mother was no longer able to assist her - see ts 6. However, in the respondent's subsequent written submissions, it was said that she had the full support of her mother: Accused's Submissions, [11(j)].
[11] ts 6, 3 March 2017.
The respondent's counsel in the appeal submitted that she was remorseful. Counsel submitted that this could be concluded from the comments in the pre‑sentence report. The writer of the pre‑sentence report said that the respondent recognised the seriousness of her actions and expressed feelings of shame. I accept counsel's submission. The respondent also entered a plea of guilty at the earliest reasonable opportunity. While this does not inevitably demonstrate remorse, it is consistent with remorse.
It was common ground that the respondent had been making repayments. This was by compulsory withholding of $30 per fortnight of her Family Tax Benefit. It was properly conceded by counsel for the respondent in this appeal that this was not mitigating because the withholdings are compelled.[12]
[12] ts 16, 21 November 2017.
Counsel for the respondent in this appeal also properly conceded that there was no basis to submit as a mitigating factor that the respondent had co‑operated.[13] The statement of facts, which were admitted by the respondent, is not consistent with co‑operation.
[13] ts 19, 21 November 2017.
Court proceedings
Submissions on 3 March 2017
At the conclusion of his plea in mitigation, the respondent's counsel submitted to the magistrate that the appropriate disposition was a term of suspended imprisonment under s 20(1)(b) of the Crimes Act.[14]
[14] ts 7, 3 March 2017.
The prosecutor referred to the need for general deterrence, but did not submit that a term of immediate imprisonment was required.[15]
Magistrate's orders
[15] ts 7, 3 March 2017.
The magistrate said:[16]
[I]n all of the circumstances, whilst I believe a term of imprisonment is appropriate, I should proceed under section 21, subsection (1), subsection (b): that is, the equivalent of suspension of that term. So I propose to impose a term of six months imprisonment but for you to be released forthwith - so immediately. So the order - there's a further order of six months and good behaviour and a $1000 recognisance amount.
[16] ts 9, 3 March 2017.
The magistrate then granted the prosecutor's application for a reparation order under s 21B of the Crimes Act and made a costs order.[17]
[17] ts 9 ‑ 10, 3 March 2017.
The magistrate then said:[18]
So after all that delay, Ms Pomare, you're going to be released. If you commit any offence which carries with it the potential for a term of imprisonment within six months, you will be brought back to court, forfeit that amount of $1000 but also potentially face a term of imprisonment of six months. I trust that you won't do that, but just note that that includes any offence which carries with it the potential of a term of imprisonment - any offence, okay, Ms Pomare? … Best of luck. Thank you.
The additional application
[18] ts 10 ‑ 11, 3 March 2017.
Immediately after the magistrate had sentenced the respondent, her counsel said he had one more application. He said he was not sure what the provision was under the Commonwealth legislation. It appears that he intended to seek a spent conviction order.[19]
[19] ts 11 ‑ 12, 3 March 2017.
There is no such option under Commonwealth legislation. The magistrate treated the application as an application under s 19B of the Crimes Act,[20] despite the fact that the respondent had already been convicted and sentenced.
[20] ts 11 ‑ 13, 3 March 2017.
The magistrate said that applications under s 19B are normally made before an offender is sentenced. The magistrate agreed he had already recorded a conviction. The magistrate said that he would have the power to make an order under s 19B, despite the conviction, as a 'possible extension of … the slip rule'.[21]
[21] ts 14, 3 March 2017.
The matter was adjourned to allow the parties to file written submissions. The matter came back before the magistrate on 26 May 2017.
Hearing on 26 May 2017
It appears the Commonwealth did not seek to persuade the magistrate that he did not have the power to make a s 19B order in the circumstances. The magistrate took the view that it was therefore unnecessary for him to determine if he had the power.[22] The prosecutor did, however, oppose the making of an order under s 19B on various grounds, including that the need for general deterrence and the seriousness of the offence meant the second stage of the test could not be met. The prosecutor submitted that a conviction should be recorded, and the original sentence imposed by the magistrate should be maintained.[23]
[22] ts 3, 26 May 2017.
[23] Prosecution's Submissions in Respect of s 19B Application dated 30 March 2017, [32] ‑ [35].
In his reasons, the magistrate correctly set out the relevant principles to be applied in determining an application for a s 19B order.
The first stage of the test
The magistrate considered that the first stage of the test under s 19B was met. As will be seen, the magistrate appeared to conclude that it was met by information that fell under the criteria listed in s 19B(1)(b)(i), being her character and antecedents. It appears that the magistrate did not, ultimately, consider that there was information that fell under the criteria listed in s 19B(1)(b)(iii), being the extent to which the offence was committed under extenuating circumstances.
Character and antecedents
The magistrate said the respondent's character and antecedents satisfied the first stage of the test. However, he said they would not compel a conclusion that an order should be made under s 19B. He noted that her good character and antecedents were not unusual in offending of this type.[24]
Extenuating circumstances
[24] ts 6, 26 May 2017.
The magistrate's findings in relation to extenuating circumstances under s 19B(1)(b)(iii) seemed to be contradictory.
The magistrate initially said there was information that fell within s 19B(1)(b)(iii) 'to a limited extent'.[25]
[25] ts 6, 26 May 2017.
Later, the magistrate set out the need for Ms Pomare to satisfy him, on the balance of probabilities, of the mitigating matters on which she relied. He then said:
There does not appear to extenuating circumstances in this matter that can be credited to Ms Pomare, notwithstanding what I've said about the onus of proof and the standard of proof. There's no doubt that they may have contributed to her conduct, but her debt and financial position does not appear to be extreme.
In my view, based upon my reading of the law and the section, in any event, it is not necessary for both factors to be present for the discretion to arise, though clearly it would have strengthened Ms Pomare's claim for a section 19B order, if both good character and extenuating circumstances were also found to exist. I'm satisfied that either my finding under section 19B, subsection (1)(b)(iii) or section 19B, subsection (1)(b)(i) enlightens my discretion to move to the second stage of the process, as identified in describing the written submissions of the prosecution.[26]
[26] ts 7 ‑ 8, 26 May 2017.
Later, the magistrate said he did not find there were extenuating circumstances.[27]
[27] ts 9, 26 May 2017.
While the magistrate's reasons on this point were not entirely consistent, it is clear that he ultimately concluded that there were not extenuating circumstances of the requisite character. Accordingly, his finding that the first stage of the test had been met was based solely on the respondent's character and antecedents.
The second stage of the test - expediency
In considering the second stage of the test, expediency, the magistrate said he had regard to the matters set out in s 16A of the Crimes Act. He then said:[28]
The offending was connected - and I use that word deliberately - to her financial position and that in turn affected her behaviour in seeking to provide for her children. The seriousness and prevalence of these offences, the facts of the plea of guilty, the deterrent effect of any order of sentence, prospect of rehabilitation, but critically, the character, antecedents, age, means and physical or mental condition of the person. Ms Pomare remains a I suspect a working mother and she has - in terms of her prospects I can take into account her character antecedents, age, means and physical condition.
Normally the person with a prior good record bringing these matters in the circumstances would expect to find, given the need to take into account both general and specific deterrence, that is prior good character, may often be the case in these circumstances. But it is, of course, vital that the benefit system in general is complied with and that the penalties reflect that, both in relation to individual things and, more importantly, in a general sense, given the difficulty in detecting these offences as well.
But the nature of these offences speak for themselves. It is a failure to correctly declare the amount of their income from employment to the Department of Human Services, that is Centrelink, that is, in effect, taking money she was not entitled to and that's basically the misuse of the benefit system. General deterrence is a critical factor. I don't find that - by a small margin I don't find that there were extenuating circumstances, but I am satisfied about the factors sets out in section 19B subsection (1)(b)(i) in terms of her character antecedents.
Accordingly, by an incredibly small margin in exercising my discretion, taking into account all of the circumstances as set out in the accused's submission, and that is the prosecution submissions, this has been a difficult sentencing exercise in relation to section 19B. There are a lot of factors weighing against Ms Pomare being granted a section 19B order, especially given that they are atypical and rare. Guiding me is her personal circumstances, her age and her lack of criminal record and her work record. Accordingly, I'm satisfied that on the smallest possible margin and considering the relevant factors of section 16A and section 19B that you - a 19B order is appropriate.
[28] ts 8 ‑ 9, 26 May 2017.
The magistrate made an order under s 19B. He ordered that the respondent be of good behaviour for 12 months, on a recognisance of $2,000. He also made a reparation order.
The appeal
The appellant appeals against the disposition under pt 2 of the Criminal Appeals Act 2004 (WA). Section 19B(3)(b)(ii) of the Crimes Act provides that an order made under s 19B may be appealed as if the person had been convicted and sentenced. Leave to appeal is required for each ground of appeal.[29]
[29] Criminal Appeals Act 2004 (WA), s 9.
The grounds of appeal are:
1.That the learned Magistrate erred in law in his application of the test outlined in section 19B of the Crimes Act 1914 (Cth) and could not be satisfied that the terms of that section were met; and
2.That the sentence imposed was manifestly inadequate.
Approach on appeal
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[30] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court has made an express or implied error.[31]
[30] Ninyette v Holmes [2015] WASC 287 [56.3].
[31] Wilson v The State of Western Australia [2010] WASCA 82 [2], Ninyette v Holmes [59] ‑ [65].
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[32] Generally, an immaterial or inconsequential error of law or fact will not give rise to a substantial miscarriage of justice.[33]
[32] Criminal Appeals Act, s 14(2).
[33] Ninyette v Holmes [65], WS v Gardin [2015] WASC 97 [239] ‑ [241].
Here, each ground of appeal asserts implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[34]
[34] The State of Western Australia v Wilson [2015] WASCA 119 [20].
In determining whether or not a sentence is manifestly inadequate, the sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness of offences of that type, and the personal circumstances of the offender.[35]
[35] The State of Western Australia v Wilson [20].
In relation to sentences imposed in other appellate cases for similar offences, these provide a yardstick against which to compare the sentence under appeal. However, the mere fact that a sentence is outside the range of sentences customarily imposed does not necessarily establish that the exercise of the sentencing discretion miscarried. Other cases do not fix the range of a sound exercise of sentencing discretion in a particular case.[36]
Ground 1 - the application of the s 19B test
[36] The State of Western Australia v Wilson [23].
The appellant submits that the magistrate could not have been satisfied that the test under s 19B was met. The appellant submits, in effect, that the outcome was so clearly inappropriate as to manifest error.
As noted earlier, the magistrate appeared to find that the first stage of the test had been met by the respondent's character and antecedents, not by the extenuating circumstances limb in s 19B(1)(b)(iii).
Again as noted earlier, the magistrate said that the respondent's character and antecedents would not compel a conclusion that an order should be made under s 19B. He correctly noted that her good character and antecedents were not unusual in offending of this type. Despite this, the magistrate found that the second stage of the test was met.
In my view, it was not reasonably open to the magistrate to make that finding, for the following reasons.
Relevant considerations in Commonwealth sentencing
Section 16A(1) of the Crimes Act requires that a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
Section 16A(2) requires that a court take into account certain factors where relevant and known to the court.
In this case, the relevant factors include:
1.the nature and circumstances of the offence;
2.the course of conduct involved in the offence;
3.the loss resulting from the offence;
4.the degree to which the offender has shown contrition (including by making reparation for the loss);
5.that the offender pleaded guilty;
6.personal and general deterrence;[37]
7.the need to ensure the offender is adequately punished for the offence;
8.the character, antecedents, age, means, and physical or mental condition of the offender; and
9.the prospects of rehabilitation of the offender.
Social security fraud
[37] Section 16A(2) of the Crimes Act was amended to include sub‑paragraph (ja), adding general deterrence to the list of factors. The amendment became operative on 27 November 2015 but applies whether or not the person is convicted before or after that date: Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), s 2, sch 7 items 1 ‑ 2.
The relevant principles to be applied in relation to social security offending are well‑established. Mazza JA in De Faria v The State of Western Australia said:[38]
Offences of this type are prevalent, relatively easy to commit and often difficult to detect. They have the tendency to undermine the integrity of the social security system. In cases involving sustained and deliberate fraud, general deterrence is a very important factor. In such cases, immediate imprisonment is the ordinary disposition, although each case must be decided on its own facts … As was pointed out in Kovacevic v Mills:
'Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served [43].'
[38] De Faria v The State of Western Australia [2013] WASCA 116 [159].
In Guerrero v Dickson, Hall J provided a useful summary of sentences customarily imposed in social security fraud cases. In short:[39]
1.Where the offending conduct has occurred over a lengthy period of months or years and has resulted in the dishonest obtaining of a large amount of money, an immediate term of imprisonment is usually imposed;
2.Immediate imprisonment is almost invariably imposed for offending where the amount defrauded exceeds $30,000; and
3.For frauds involving less than $15,000, sentences include immediate imprisonment and non‑custodial dispositions.
Evaluation of ground 1 of the appeal
[39] Guerrero v Dickson [54] ‑ [55].
The offence was very serious, occurring over a period of about two years and six months. The respondent intentionally misrepresented her true financial circumstances every fortnight over that period, making over 60 false declarations. She received nearly $30,000 by her deception.
Social security fraud offences are prevalent. General deterrence is a very important factor.
The respondent is making reparation. This is under compulsion, so is not an indication of contrition. However, as noted above, I accept that she is remorseful.
The respondent pleaded guilty at the earliest reasonable opportunity.
In light of her otherwise good character and antecedents, the need for personal deterrence is of less significance than might otherwise be the case. For the same reason, she has reasonable prospects of rehabilitation.
The respondent's age, character and antecedents are summarised above. The respondent has no physical or mental health issues.
There is nothing in the respondent's character or antecedents to justify the exceptional use of s 19B.
It is not unusual for social security fraud offenders to be single persons with dependents and to be otherwise of good character.[40]
[40] Moreland v Snowdon [2007] WASC 137 [44].
The respondent's financial circumstances were not unusual and were not entirely created by events outside of her control. It is true that, for an unknown period of time, the respondent was receiving $500 per week in compensation payments instead of her regular wages of $630 per week, due to an injury. It is unfortunate that the magistrate was not told when this began and for how long it continued. However, even if she was receiving the lower amount throughout the entire period of offending, she was still receiving substantially more than she was declaring.[41] On the last 43 fortnights of the offending period, she declared her income to be $185.
[41] The respondent declared an income of more than $500 on only one occasion.
In addition, the respondent's financial obligations included matters that could not be characterised as necessary. Among the financial obligations listed by her counsel were private school fees.[42]
[42] ts 3, 3 March 2017.
Finally, her deception occurred over a two and a half year period, in which she had plenty of time to rearrange her financial obligations or to seek assistance from lawful sources.
Having regard to all of those matters, it was not open to the magistrate to make a s 19B order.
Ground 1 has been made out.
Ground 2 - manifest inadequacy
The reasoning in ground 1 compels a conclusion that the disposition was manifestly inadequate.
I am satisfied that a disposition under s 19B could not have been made if the sentencing discretion had been properly exercised. The disposition was plainly unreasonable.
The maximum penalty for the offence was 12 months' imprisonment, a fine of up to $6,600 or both.[43]
[43] Crimes Act (Cth), s 4AA and s 4B(2); Criminal Code (Cth), s 135.2. At the time the offending commenced, a 'penalty unit' meant the amount of $110.
I previously noted the standards of sentencing customarily observed with respect to social security fraud. General deterrence is a very important factor. Where the offending conduct has occurred over a lengthy period and has resulted in the dishonest obtaining of a large amount of money, the usual sentence will be an immediate term of imprisonment. Immediate imprisonment is almost invariably imposed for offending where the amount defrauded exceeds $30,000. For frauds involving less than $15,000, sentences include immediate imprisonment and non‑custodial dispositions.
I have previously set out the factors that establish the seriousness of the offence and the respondent's personal circumstances.
Taking all of this into account, I find that the magistrate's disposition was manifestly inadequate.
A disposition under s 19B is exceptional. The facts in this case, including the respondent's character, antecedents and mitigating factors, do not justify such an exceptional disposition. The disposition failed to reflect the seriousness of the offence and the need for general deterrence.
Ground 2 has been made out.
Discretion to dismiss the appeal if no substantial miscarriage
Counsel for the respondent did not contend that, even if a ground of appeal was decided in favour of the appellant, I should dismiss the appeal on the grounds that no substantial miscarriage of justice has occurred, under s 14(2) of the Criminal Appeals Act. In any event, I would not exercise that power. I consider that the outcome did give rise to a substantial miscarriage of justice. The disposition was not open to the magistrate, and was manifestly inadequate.
Conclusion
Accordingly, I grant leave to appeal in relation to each ground and allow the appeal. I set aside the s 19B order imposed by the magistrate.
Resentencing
Both parties agreed that, if the appeal was allowed, this court should resentence the appellant.
Counsel for the appellant submitted that the appropriate sentence would be the sentence initially imposed by the magistrate. That is, a sentence of 6 months' imprisonment with an order that the respondent be released forthwith upon entering a recognisance of $1,000 and to be of good behaviour for six months, under s 20(1)(b) of the Crimes Act.
Counsel for the respondent submitted that, if the appeal was allowed, she 'couldn't submit [that sentence] was not appropriate'.[44]
[44] ts 19, 21 November 2017.
It is necessary to make arrangements for the appellant to be present for resentencing. Counsel for the respondent will also have an additional opportunity to advise the court of any changes to the respondent's circumstances, and to make any further submissions.
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