Haddington v Department of Human Services & Health - [2014] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HADDINGTON v DEPARTMENT OF HUMAN SERVICES & HEALTH
[2014] SASC 57
Reasons for Decision of The Honourable Justice David
23 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant convicted of 2 counts of obtaining financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) – sentenced to 8 months imprisonment to be released after serving 3 months upon entering into a recognizance order – whether sentence was manifestly excessive – whether Magistrate erred in failing to wholly suspend the sentence – whether Magistrate failed to account for time spent in custody.
Held: appeal allowed – it is not immediately apparent whether the learned Magistrate has had regard to the time spent in custody by the appellant when imposing the term of imprisonment – appellant to be resentenced to account for time spent in custody – otherwise, no error of either fact or law in Magistrate’s reasons to warrant interference – sentence within an appropriate range – no error demonstrated in exercise of discretion not to wholly suspend.
Crimes Act 1914 (Cth) ss 4K and 16, referred to.
Kovacevic v Mills (2000) 76 SASR 404, applied.
R v Place (2002) 81 SASR 404, considered.

HADDINGTON v DEPARTMENT OF HUMAN SERVICES & HEALTH
[2014] SASC 57
Magistrates Appeal: Criminal

DAVID J: The appellant was charged with two counts of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). The appellant pleaded guilty to those charges and was sentenced in the Magistrates Court. The maximum penalty for each of the charged offences is imprisonment for 12 months.
The learned Magistrate imposed one sentence pursuant to s 4K of the Crimes Act 1914 (Cth) (Crimes Act) of 8 months imprisonment, which allowed for a discount of 25 per cent by virtue of the appellant’s pleas of guilty. The learned Magistrate then ordered pursuant to s 21(b) of the Crimes Act that the balance of the sentence be suspended after the appellant had served a period of 3 months and upon him entering into a bond of his own recognisance in the sum of $500 subject to certain conditions. Finally, the Magistrate made an order for reparation in the amount of $10,514.36, being the amount the subject of the two counts of obtaining a financial advantage.
The appellant appeals to this Court and seeks an order that the sentence be set aside. He asks that he be re-sentenced to the same 8 month term of imprisonment imposed but that the whole of that term be suspended. In the alternative, he argues that the term of imprisonment is manifestly excessive and that it should be reduced.
Background
The facts and circumstances of the appellant’s offending are set out in the learned Magistrates ex-tempore remarks on penalty dated 12 September 2013.
In summary, the appellant has been in receipt of Centrelink benefits from the beginning of 2005. On six occasions the appellant under-declared his income to Centrelink and otherwise failed to report his income to Centrelink. During the period of the offending, the appellant earned $42,570.86 of which only $1,803.75 was declared. This resulted in an overpayment to the appellant of $10,514.36. The appellant is presently repaying those overpayments at an amount of $20 per fortnight.
Notably, the appellant has a number of prior convictions and, at the time of the offending the subject of this appeal, was the subject of a good behaviour bond. The appellant’s prior convictions and current good behaviour bond are conveniently summarised at paragraphs [5] – [6] of the Magistrate’s reasons:
[5]This is the first time you have committed a Commonwealth fraud but it is not the first time you have behaved dishonestly. You do have convictions for offences of dishonesty that occurred in about 2006 with one offence of driving using a motor vehicle without consent occurring in December 2007. There were also other charges that were incorporated in penalties that were imposed. Initially in August 2006 you received a 10 month term of imprisonment which was suspended upon you entering into a bond. That bond was breached. There was another incident that the court dealt with and in April 2008 you received a term of imprisonment of 16 months with a non-parole period of eight months back dated to 24 December 2007. That sentence was added to by a sentence on 23 April 2008 and the total head sentence was increased by three months and the non-parole period increased by one month. Looking at your criminal history, your non-parole period of nine months and 14 days would have come to an end in about September 2008. You were then on parole until about June/July 2009.
[6]At the time of this commonwealth offending, you were also the subject of a good behaviour bond. It had been imposed for a charge of unlawful possession which occurred on 26 June 2006. The breach of that bond is before the court today because the first filling out forms occurred during the two year period of the bond, the bond being imposed on 16 May 2008.
The Magistrate found good reason to excuse the appellant’s breach of bond and no further action was taken in relation to that breach.
Arguments on appeal
The appellant appeared for himself at all times before me. I adjourned the hearing of the appeal on two separate occasions to provide the appellant with an opportunity to obtain legal representation. Though the appellant was unable to obtain legal representation and ultimately appeared for himself at the appeal, I was provided with a written outline of argument, which appears to have been prepared at least with the assistance of a legal practitioner.
The appellant argues two separate grounds of appeal. First, that the Magistrate erred by not giving sufficient consideration to the appellant’s guilty pleas and, second, that the Magistrate erred in giving insufficient weight to the appellant’s actual rehabilitation, prospects of rehabilitation and personal circumstances. I deal with each ground of appeal in turn.
Allowance for guilty pleas
The appellant at paragraph 4 of his outline of argument simply states that the learned Magistrate was required, by virtue of s 16A(2) of the Crimes Act, to have regard to the appellant’s guilty pleas when passing sentence. Clearly, by affording the appellant a discount of 25 per cent for his guilty pleas, the Magistrate has had regard to those pleas.
The question that remains is whether a discount of 25 per cent was appropriate in the circumstances. Importantly, any weight to be given to a guilty plea is a matter of discretion for the sentencing Magistrate. Further, s 16 A of the Crimes Act provides that an offender’s guilty plea is a factor that must be taken into account by the sentencing Magistrate, but does not specify the discount to be given or indeed that a discount should be given.
In this case the learned Magistrate states at paragraph 1 of her reasons:
Because of your pleas of guilty I will reduce the penalty by 25 per cent.
This is the extent of the Magistrate’s discussion regarding the appellant’s guilty pleas. The learned Magistrate does not set out the factors and circumstances to which she has had regard in determining the reduction. This is not a criticism and does not amount to an error of principle. Indeed, had the learned Magistrate decided to state only that a reduction had been made without identifying the size of the reduction, even that of itself would not have been a ground for interference with the sentence.[1] However, the decision by the learned Magistrate not to provide reasons for the extent of the reduction makes it difficult for me to now determine its appropriateness and it does give the reduction an appearance of arbitrariness.
[1] R v Place (2002) 81 SASR 395 per Doyle CJ, Prior, Lander and Martin JJ at [80]
That said, at first blush the extent of the reduction appears appropriate and is well within the range that I would expect in a case such as this. In any event, the appellant has not identified any error on behalf of the Magistrate in regards to her determination of the extent of the reduction such that it is available to me to interfere with the sentence. This ground of appeal is dismissed.
Failure to give sufficient weight to the appellant’s actual rehabilitation, prospects of rehabilitation and personal circumstances
The matters to which the learned Magistrate was required to have regard when sentencing the appellant are set out in s 16A of the Crimes Act and relevantly includes the character, antecedents, age, means and physical or mental condition of the appellant[2] and his prospects of rehabilitation[3].
[2] Crimes Act 1914 (Cth), s 16A(2)(m)
[3] Ibid, s 16A(2)(n)
The appellant argues that when having regard to these factors, the learned Magistrate gave insufficient weight to the existence and effect of the appellant’s pathological gambling condition. He further argues that the learned Magistrate erred by stating that the appellant has never been diagnosed with actual anxiety or depression and failed to give sufficient weight to that diagnosis. He argues that the learned Magistrate did not have sufficient regard to his psychological state at the time of the offending and his purportedly significant prospects of rehabilitation. Finally, the appellant argues that the learned Magistrate erred by failing to have regard to the short period of time he spent in custody for these offences in December 2012.
I have considered carefully the learned Magistrate’s sentencing remarks and consider that she has had regard to and given adequate weight to all of the matters put to her in submissions and to which she was required to consider pursuant to s 16A of the Crimes Act.
It is clear from her reasons that the Magistrate considered the appellant’s actual rehabilitation, prospects of rehabilitation and personal circumstances and balanced those considerations against the need for personal and general deterrence. In that regard, it is important to note that the appellant had a number of prior convictions and had served a previous custodial sentence in relation to dishonesty offending. The appellant was the subject of a good behaviour bond at the time of the offending.
The principles relevant to sentencing for social security fraud are well established. Relevantly, in Kovacevic v Mills (2000) 76 SASR 404 the Full Court stated at [39]:
... 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 is apparent from her reasons that the learned Magistrate has been influenced by considerations of rehabilitation. Those considerations have clearly influenced her decision to suspend the balance of the term of imprisonment upon the appellant having served three months.
But for what follows, I am of the view that the sentence of the Magistrate is appropriate in all of the circumstances and that there is no basis upon which it is open to me to resentence.
The appellant, at paragraph 16 of his outline of argument, argues that the learned Magistrate has failed to account for a period of imprisonment that he served for these offences at the Adelaide Remand Centre (ARC) in December 2012. I have caused a review of the Criminal Registry Systems to be undertaken and it is apparent that the appellant was remanded at the ARC for a period of approximately 16 days between 28 November 2012 and 13 December 2012.
It is not immediately apparent from her reasons that the learned Magistrate has had regard to this time spent in custody when imposing the term of imprisonment. No mention is made of it. Given that 16 days is not an insignificant proportion of the 3 months the appellant will be required to spend in custody I will, out of an abundance of caution, allow the appeal on this point only and resentence the appellant to account for that time.
I note also that the appellant served a further period of 23 days imprisonment between 12 September 2013 and 4 October 2013 prior to being granted bail pending the outcome of this appeal. When resentencing the appellant I will account for this time also.
Conclusion
I would allow the appeal, but only so far as to adjust the sentence of the learned Magistrate to account for the short period of time the appellant spent in custody and in around early December 2012 and in September 2013 immediately prior to being granted bail pending the outcome of this appeal. This time totals 39 days.
To be clear, I am resentencing the appellant not by reducing the head sentence imposed by the Magistrate but rather by reducing the time to be spent in custody by the appellant before the balance of the sentence is suspended.
I would make the following orders:
1The appeal is allowed, but only so far as to amend the term of imprisonment to be served by the appellant to account for time already spent in custody.
2The appellant is re-sentenced to 8 months imprisonment and, pursuant to s 21(b) of the Crimes Act 1914 (Cth), is to be released after serving a period of 52 days in prison.
3No order as to costs.