Ferenczfy v Commonwealth Director of Public Prosecutions - [2004] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
FERENCZFY v COMMONWEALTH DPP
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Bleby and The Honourable Justice Gray)
16 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
COMMONWEALTH OFFENCES - EARLY RELASE ORDER - BREACH OF BOND
The respondent was sentenced in the Magistrates Court following his plea of guilty to multiple counts of fraudulently obtaining social security benefits - he had previously been convicted of similar offences and sentenced to imprisonment for 18 months, but he was given the benefit of an early release order upon his entry into a bond, after serving four months - the current offending breached the bond - on appeal to a single judge, the court effectively reduced the 14 months balance of the earlier sentence - held on appeal by the DPP (Cth) that having regard to the relevant provisions of the Crimes Act 1914 (Cth), there was no power to reduce the term of imprisonment to be served in such circumstances - sentence restructured accordingly - appeal allowed.
Crimes Act 1914 (Cth) s 19AC(2), s 20 and s 20A, referred to.
Sweeney v Corporate Security Group (2003) 86 SASR 425, applied.

FERENCZFY v COMMONWEALTH DPP
[2004] SASC 208
Full Court: Perry, Bleby and Gray JJ

PERRY J On 12 March 2004, the Full Court allowed an appeal by the Commonwealth DPP (“the DPP”) from an order made by a single judge of the court, who in turn dealt with an appeal by the respondent Nandor Ferenczfy (“Mr Ferenczfy”) from the penalty which had been imposed upon him in the Magistrates Court sitting at Elizabeth.
Mr Ferenczfy was charged in the Magistrates Court on a complaint which alleged six offences of making false statements in connection with a claim for social security benefits. The offences occurred between May and July 2002 when Mr Ferenczfy lodged applications for payment of New Start allowance in which he made false statements as to whether he had been in employment.
The total overpayment was $1,250.77.
The commission of those offences operated as a breach of a good behaviour bond upon which Mr Ferenczfy had been released for earlier offending.
On 22 March 2001, Mr Ferenczfy was convicted and sentenced to 18 months imprisonment on 25 counts of obtaining social security benefits to which he was not entitled, and eight counts of making false statements.
On that occasion Mr Ferenczfy was given the benefit of an early release order, in that the court ordered that he be released after serving four months of the 18 months sentence of imprisonment upon his entry into a bond to be of good behaviour for two years.
On the same occasion, that is, on 22 March 2001, Mr Ferenczfy was convicted of a further 14 counts of making false statements in connection with the payment of social security benefits, as to which he was sentenced to six months imprisonment, to be served concurrently with the sentence imposed on the other counts.
When he was dealt with for the offences committed between May and July 2002, Mr Ferenczfy admitted that the commission of those offences breached the bond upon which he had been released for the earlier offending.
The sentencing magistrate thereupon revoked the order of release, and ordered that Mr Ferenczfy be imprisoned for the balance of the earlier sentence, that is, that part of the earlier sentence which Mr Ferenczfy had not served at the time of his release, namely, 14 months.
As for the offences committed between May and July 2002, the sentencing magistrate imposed a single penalty of six months imprisonment, which he ordered to be served cumulatively upon the term of 14 months, making a total of 20 months.
As to the head sentence of 20 months imprisonment, the sentencing magistrate declined to make a recognisance release order.
On appeal to a single judge of this Court (“the appeal judge”), the appeal judge held that the sentencing magistrate had erred in failing to make a recognisance release order. He allowed the appeal, and made an order which effectively confirmed the head sentence of 20 months imprisonment, but pursuant to s 19AC(2) of the Crimes Act 1914 (Cth), he ordered that after serving 12 months of the total sentence of 20 months, Mr Ferenczfy be released upon his entry into a bond in the sum of $500 to be of good behaviour for two years on conditions as to supervision and treatment.
On the DPP’s appeal to this Court, the Court left in place the sentences aggregating 20 months, but ordered that Mr Ferenczfy be released forthwith on the expiration of the term of 14 months imprisonment, being the balance of the term of imprisonment imposed for the earlier offending, upon his entry into a good behaviour bond on similar terms to that which had been ordered by the appeal judge.
I set out now the reasons why the Court took that course.
The relevant sentencing provisions are to be found in the Crimes Act 1914 (Cth).
Section 20 of the Crimes Act deals with the conditional release of offenders. Relevantly that section provides:
“20.(1) Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
(a)by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i)that he will be of good behaviour for such period, not exceeding five years, as the court specifies in the order;
...
(iv)that he will, during a period, not exceeding two years, that is specified in the order, 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; or
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).[1]
2....”
[1] For present purposes s 19AF(1) is not relevant.
Where, as is the case here, there has been a failure to comply with a condition of release, the provisions of s 20A of the Crimes Act are invoked.
Relevantly those provisions are as follows:
“20A(1) Where a person has been discharged in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a)issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b)if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective - issue a warrant for the apprehension of the person.
...
(5)Where, in accordance with this section, a person who has been .... released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
(a)...
(c)in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia)impose on the person a monetary penalty of not more than $1000; or
(ib)subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic)revoke the order and make an order under section 20AB; or
(i)revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or
(ii)take no action.
(5A)The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.
(5B)...
(6)Where a person who has been .... released in pursuance of an order made under paragraph 20(1)(b), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a)the fact that the order was made;
(b)anything done under the order; and
(c)any other order made in respect of the offence or offences.
....”
Insofar as Mr Ferenczfy had been released by an order made under s 20(1)(b) of the Crimes Act, upon his failure to comply with a condition of the order, there were, pursuant to s 20A(5)(c), five sentencing options, being those enumerated between subsection (c)(ia) and subsection (c)(ii).
Of those options, the making of an order under s 20AB is not relevant for the purposes of this case.
In this case, neither party contended that the magistrate erred in revoking the recognisance release order which had been imposed with respect to the earlier offending.
It followed that the only applicable option was that provided for in s 20A(5)(c)(i), pursuant to which it was incumbent upon the court to order that Mr Ferenczfy “be imprisoned for that part of ... [the] ... sentence of imprisonment fixed under paragraph 20(1)(b) that ... [Mr Ferenczfy] ... had not served at the time of his ... release”.
In Sweeney v Corporate Security Group,[2] I held that when making an order pursuant to that subsection, the court had no discretion to reduce the term of imprisonment to be served.
[2] (2003) 86 SASR 425.
This is in contrast with the corresponding provision in the State sentencing regime, more particularly s 58(4)(a) of the Criminal Law (Sentencing) Act 1988.
The problem which arises in this case is that the appeal judge purported to make a recognisance release order operative after Mr Ferenczfy had served only 12 months, that is, two months less than the 14 months which was the balance of the period of 14 months being the remaining, unserved part of the sentence imposed for the earlier offending.
It follows that the appeal judge erred, and that the earliest time at which a recognisance release order could operate is after Mr Ferenczfy had served 14 months imprisonment.
Counsel for Mr Ferenczfy, Ms O’Connor, conceded that the appeal judge had erred in taking the course which he did, and she did not oppose the making of the order pronounced by the Court on 12 March 2004.
BLEBY J I agree with the reasons of Perry J now published for allowing this appeal and for the order made on 12 March 2004.
GRAY J On 12 March 2004 I joined in an order of the Full Court allowing this appeal. I agree with the reasons of Perry J for the making of that order.