Gibson v Commonwealth Director of Public Prosecutions

[2006] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GIBSON -v- COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2006] WASC 195

CORAM:   McKECHNIE J

HEARD:   11 AUGUST 2006

DELIVERED          :   11 AUGUST 2006

FILE NO/S:   SJA 1048 of 2006

BETWEEN:   JOHN CHRISTOPHER GIBSON

Applicant

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HOGAN

File No  :PE 33918 of 2004

Catchwords:

Criminal law - Social Security fraud - Sentence of 12 months with CRO after 6 months - No arguable ground of appeal

Legislation:

Nil

Result:

Leave to appeal refused

Category:    D

Representation:

Counsel:

Applicant:     Mr C C Bloxham

Respondent:     Ms V Saragih

Solicitors:

Applicant:     Julienne Penny & Associates

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Hinton (2002) 134 A Crim R 280

Kovacevic v Mills (2000) 76 SASR 404

Lowndes v The Queen (1999) 195 CLR 665

Lutter v Hubbard [2000] WASCA 248

Ralph v Nawrojee [2003] WASCA 5

Case(s) also cited:

Nil

1. McKECHNIE J:  This is an application for leave to appeal against a sentence of 12 months' imprisonment, with conditional release order after 6 months, imposed on 28 April 2006 for a charge of (what I will call for convenience) social security fraud.  From 26 February 2002 to 2 December 2002 the applicant unlawfully obtained Newstart Allowance by failing to declare his income.  The grounds of appeal, which are set out more as submissions, raise a number of matters.  Without quoting extensively, it is necessary to go back to what the proceedings were before the Magistrate.

2. At the very commencement of the matter the prosecution had signalled its intention to seek an immediate term of imprisonment.  The Magistrate adjourned for a pre‑sentence report which she obtained.  The applicant was not represented before her.

3. After hearing submissions from the applicant and the respondent the Magistrate gave what I might respectfully say were very detailed and complete sentencing remarks dealing, amongst other things, with the criminal history relevant to the applicant noting that he had been convicted on 13 July 2001 for obtaining a Commonwealth benefit which was not payable to him and for which he was fined.  Then on 19 August 2002 he was convicted of 32 counts of stealing from an EFTPOS machine between 12 November 2001 and 8 January 2002.

4. He had previously been given an ISO.  The Magistrate dealt with that and gave reasons why she thought an ISO was not a suitable disposition, notwithstanding a recommendation in the pre‑sentence report having regard to, amongst other things, his unsatisfactory performance.  She referred particularly to some authorities and to a relatively recent authority on the area in Western Australia, that of Ralph v Nawrojee [2003] WASCA 5, which refers to Kovacevic v Mills (2000) 76 SASR 404, a case relied upon in this appeal by the applicant. The applicant also refers to Lutter v Hubbard [2000] WASCA 248, a decision in this jurisdiction, and that is also dealt with in the judgment of Anderson J in Ralph v Nawrojee. 

5. The Magistrate went through all of the matters in the Crimes Act (Cth) s 16A and made comment in relation to them.  In particular, she noted the effect upon the applicant's family or dependants.  The applicant's partner is expecting their first child in October.  The Magistrate quoted from Hinton (2002) 134 A Crim R 280 in respect of this matter. After comprehensively reviewing all of the circumstances, the Magistrate came to the conclusion that the only sentencing option available was imprisonment, being aware that it is a sentence of last resort. She then considered whether it should be served in full, whether there should be an order for release on recognisance, or indeed immediate release, before sentencing the applicant in the terms I have earlier set out.

6. In order to grant leave I must be satisfied that there is a reasonably arguable prospect of success.  In essence, the applicant's counsel has referred to the factors which were before the Magistrate and really complains that perhaps more weight should have been given to some matters.  However, the sentencing discretion was that of the Magistrate, not of me, as Lowndes v The Queen (1999) 195 CLR 665 reminds us. I am unable to detect any error of approach, in principle, or in fact, in the Magistrate's sentence. Nor do I think it can be arguably demonstrated that the sentence of 12 months for this offence, with a conditional release order after 6 months, is so far outside the range or the proportion of appropriate sentences as to manifest any error. Therefore, leave to appeal is refused.