Garnsey v Stamford - [2002] TASSC 43

[2002] TASSC 43

CITATION: Garnsey v Stamford [2002] TASSC 43

PARTIES:  GARNSEY, Anthony James
  v
  STAMFORD, Mark

TITLE OF COURT:  SUPREME COUR OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 4/2002
DELIVERED ON:  4 July 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  3 July 2002
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Social Security fraud - General deterrence very significant - Relevance of an addiction to gambling.
Kovacevic v R (2000) 111 A Crim R 131; Martin v R (1994) 78 A Crim R 252; R v Cavallin unreported Court of Appeal of Victoria, 24 July 1996, followed
Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
             Applicant:  M J Brett
             Respondent:  J Read
Solicitors:
             Applicant:  G R Richardson
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment ID Number: [2002] TASSC 43
Number of paragraphs: 18

Serial No 43/2002
File No LCA 4/2002

ANTHONY JAMES GARNSEY v MARK STAMFORD

REASONS FOR JUDGMENT UNDERWOOD J
4 July 2002

This is a motion to review a sentence imposed in a court of petty sessions on 18 March 2002. The applicant pleaded guilty to 27 counts of knowingly presenting a false document contrary to the Social Security Act 1991 (Cth), ss1346 and 1350, and to five counts of knowingly obtaining payment of an allowance contrary to the same Act, ss1347 and 1350. Upon these charges the learned magistrate sentenced the applicant to 26 weeks' imprisonment to commence on 15 March 2002. A further order was made that the applicant be conditionally released from that sentence after 13 weeks.

The single ground of the motion to review that sentence is that it is manifestly excessive.

The applicant's offending related to the Newstart allowance. The offences were committed over a virtually continuous period of more than 2½ years between 23 April 1998 and 17 January 2001. The only time during that period in which no offence was committed was four weeks between 29 October 1998 and 25 November 1998.

The applicant's criminal conduct consisted of earning $54,579.21, but declaring only $626 of those earnings. In result, he obtained social security payments to which he was not entitled in the sum of $14,753.95.

One of the over-payments forming part of the matters of complaint was raised with the applicant by the Social Security Department on 7 September 2000. Notwithstanding this query the applicant continued to offend. In addition, on several occasions during the period of offending, the applicant received letters routinely sent by the Department of Social Security, reminding him of his obligation to correctly declare all income earned.

In March 2001, the commission of the offences was detected by the Social Security Department and in a telephone call on 10 April 2001, the applicant confessed his guilt. A plea of guilty was entered at an early stage.

The applicant was aged 33 years at the time of sentencing. He was then in employment. He had…

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 Garnsey v Stamford

Details

AGLC: Garnsey v Stamford [2002] TASSC 43
Case: [2002] TASSC 43
Decision Date: 4 July 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an appeal by Anthony James Garnsey against the sentence imposed by a magistrate. The applicant pleaded guilty to multiple counts of social security fraud. The court was required to determine whether the sentence of 26 weeks imprisonment, with a conditional release after 13 weeks, was manifestly excessive. The legal issues centered on the appropriate factors to consider in sentencing for social security fraud, the relevance of the applicant's gambling addiction, and the importance of general deterrence. The court noted the persistent and deliberate nature of the offending, spanning over two and a half years, and the substantial sum obtained through fraud. While acknowledging the applicant's addiction to gambling and efforts towards rehabilitation, the court emphasized the significance of deterrence in cases of sustained fraud. The court concluded that the sentence imposed was within the proper exercise of the magistrate's discretion and was entirely appropriate given the circumstances of the case.

The court held that the sentence was not manifestly excessive and dismissed the appeal. The reasoning was grounded in the need to uphold public confidence in the social security system and to ensure that the punishment serves as a general deterrent. The court rejected the argument that the applicant's gambling addiction significantly reduced the importance of general deterrence, noting that persistent criminal conduct, despite opportunities to cease offending, warranted a substantial penalty. The decision underscored the court's commitment to addressing the prevalence and seriousness of social security fraud through appropriate sentencing.

Orders