Hamlin v Lawson

[2009] WASC 303

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HAMLIN -v- LAWSON [2009] WASC 303

CORAM:   McKECHNIE J

HEARD:   27 AUGUST 2009

DELIVERED          :   13 OCTOBER 2009

FILE NO/S:   SJA 1021 of 2009

BETWEEN:   DAVID JOHN HAMLIN

Appellant

AND

BEN LAWSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R B LAWRENCE

File No  :PE 36975 of 2008, PE 36976 of 2008, PE 36977 of 2008, PE 36978 of 2008, PE 36979 of 2008, PE 36980 of 2008, PE 36982 of 2008

Catchwords:

Criminal law and procedure - Intent to defraud - Whether proved - Whether benefit gained - Spent conviction - Whether appropriate

Legislation:

Nil

Result:

Appeal against conviction dismissed
Sentence varied
Spent conviction order made

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Ms K C Cook

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Nil

McKECHNIE J: 

What is this case about?

1. Mr Hamlin, a prison officer, spent many hours in 2008 driving Mr Murray on outings because Mr Murray had been catastrophically injured in a car crash.  Mr Hamlin was entitled to be paid by the Insurance Commission for his work.  On seven occasions he submitted claims for days when he had not driven Mr Murray.  He said this was a mistake.  He had worked other days.  The magistrate did not believe him.  He was convicted of seven counts of obtaining a benefit by fraud and fined $1,000.  The magistrate did not make a spent conviction order.  Mr Hamlin then lost his job.

The issues

•Did the magistrate err in applying the Criminal Code (WA) s 24?

No.

•Did the magistrate err in finding the appellant gained benefits?

No.

•Should a spent conviction order be made?

Yes.

Did the magistrate err in applying the Criminal Code (WA) s 24

1. In an unchallenged finding the magistrate was satisfied beyond reasonable doubt that Mr Hamlin presented the invoices to the Insurance Commission and that on each occasion claimed he was working at Hakea Prison over the times and on the dates contained in the invoices and did not complete the services on these dates (ts 48).  In a further unchallenged finding the magistrate found that Mr Hamlin did not do the work for which he claimed on those days, not because of memory loss or guesswork, but because of a calculated attempt to provide information for the purpose of obtaining money to which he was not entitled.  The magistrate then made the reference about which Mr Hamlin complains when he said:

   I am satisfied beyond reasonable doubt that he did not honestly and reasonably but mistakenly include the dates on the invoices in question, and he did so with the purpose of presenting invoices for payment in a manner that could only be found in intent to defraud the commission.  (ts 81)

2. The reasonableness of Mr Hamlin's belief is an irrelevant consideration but the honesty of it is not. The magistrate found that he acted dishonestly and that he had an intent to defraud. If s 24 had any part to play, it fell away on the finding of dishonesty. The magistrate's reference to reasonableness did not cause a miscarriage of justice.

3. Mr Hamlin also complains that the magistrate reversed the onus of proof when he said that he had a complete inability to offer any acceptable or logical explanation for splitting the hours.  Mr Hamlin's submission cannot be accepted.  The magistrate correctly set out the burden of proof (ts 48).  The comment to which complaint is made must be read in context not fragmented as Mr Hamlin would submit.  The actual finding was:

   He has complete inability to offer any acceptable or logical explanation for splitting the hours, gives rise to an irresistible conclusion that he has fabricated his evidence in an attempt to absolve himself of culpability.  (ts 50)

4. This finding does not reverse the onus of proof.

Did the magistrate err in finding the appellant gained benefits?

1. Mr Hamlin supplied his bank account details to the Insurance Commission.  The evidence from the Commission (Exhibit F1) shows a payment by cheque number 40013086 to Mr Hamlin's account and shows also that the cheque was retired on 30 April 2008.  The amount of the cheque included the amounts in the invoices the subject of the charges. 

2. On that evidence it was open for the magistrate to conclude that the payment had been processed into Mr Hamlin's account at the Police & Nurses Credit Union and he has obtained a benefit.  Even if that were wrong, on the magistrate's other finding, the appellant is guilty of attempted fraud which is a decision I could substitute.  If I did so I would not alter the penalty.

Should a spent conviction order be made?

1. The magistrate accepted there was little likelihood that Mr Hamlin would re‑offend having regard to his past good record.  He noted that spent conviction orders should only be made sparingly and in circumstances of an exceptional character.  There was no cogent or reliable evidence before the magistrate that indicated that Mr Hamlin would lose his employment and while acknowledging there may be some detriment the magistrate declined to make a spent conviction order.

2. The magistrate may have been too hard on Mr Hamlin in view of the character evidence given by Mrs Murray and Mr Clarke.  However, what Mr Hamlin foreshadowed before the magistrate without evidence has now happened.  As a result of the conviction he lost his job.

3. Accepting that fresh evidence with the other evidence in the case, a spent conviction order should be made and I make it.