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Hrasky v Boyd

Hrasky v Boyd

Case [2000] TASSC 39 2 May 2000

General Deterrence

Uniformity in Sentencing

Social Security Fraud

Remorse

Criminal Law

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[2000] TASSC 39

CITATION: Hrasky v Boyd [2000] TASSC 39

PARTIES:  HRASKY, Petr
  v
  BOYD, Ingeborg Elsa

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA56/1999
DELIVERED ON:  2 May 2000
DELIVERED AT:  Hobart
HEARING DATES:  11 April 2000
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 - Uniformity in sentences for Federal offences - Social Security fraud - General deterrence very significant.

Laxton v Justice (1985) 38 SASR 377; Wright v R (1994) 74 A Crim R 152; R v Rossi andR v Bowman (1988) 4 WAR 463; R v Purdon unreported New South Wales Court of Criminal Appeal 27 March 1997, applied.

Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
             Applicant:  J D Barnett
             Respondent:  D J Porter QC
Solicitors:
             Applicant:  Commonwealth Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2000] TASSC 39
Number of Paragraphs: 30

Serial No 39/2000
File No LCA56/1999

PETR HRASKY v INGEBORG ELSA BOYD

REASONS FOR JUDGMENT UNDERWOOD J

2 May 2000

Introduction

The respondent was found guilty of one count of making a false statement in connection with a claim for a social security payment and 97 counts of knowingly obtaining payment of an allowance that was not payable, contrary to the Social Security Act (Cth) 1991, ss1344 and 1347, respectively. Upon her convictions, a magistrate ordered that the respondent be sentenced to 12 months' imprisonment, but ordered her release forthwith upon her entering into a recognisance in the sum of $5,000, conditioned as follows:

"1 To be of good behaviour and not commit any similar offence against the Social Security Act 1991 for a period of 3 years;
2 To continue to make reparation to the department in accordance with the current arrangement or such other sum that may be agreed or ordered pursuant to Section 20AA of the Crimes Act 1914; and
3 To be subject to the supervision of a probation officer for a period of 12 months and during that period obey the reasonable directions of the probation officer so appointed."

The applicant seeks a review of those orders upon the grounds that:

"1 The sentence imposed by the Learned Magistrate was manifestly inadequate in all the circumstances.
2 That the learned Magistrate erred in fact and in law in failing to give sufficient regard and weight to the sentencing policies and decisions from Supreme Courts other than Tasmania in considering sentence."

The facts

The respondent was aged 63 years at the time the first offence was committed and 68 years at the date of her convictions. She was born in Germany in November 1930. In 1949, she went to live in England and married 12 months after arriving in that country. The respondent trained as a nurse, but has not been in gainful employment since her marriage. There are two children of the…

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 Hrasky v Boyd

Details

AGLC: Hrasky v Boyd [2000] TASSC 39
Case: [2000] TASSC 39
Decision Date: 2 May 2000

CaseChat Overview and Summary

In this case, the Supreme Court of Tasmania was called to review the sentence imposed on Ingeborg Elsa Boyd for multiple counts of social security fraud. Boyd had been convicted of making a false statement in connection with a claim for a social security payment and for knowingly obtaining payments that were not payable. The court was tasked with determining whether the sentence imposed by the magistrate was manifestly inadequate and whether the magistrate had failed to give sufficient regard to sentencing policies and decisions from other Supreme Courts. The applicant argued that the sentence was inadequate and that the magistrate had not appropriately weighed the relevant sentencing considerations.

The court considered the principles of uniformity in sentencing for federal offences, emphasizing the importance of adopting a common approach across Australian jurisdictions. It referenced several cases which highlighted the significance of general deterrence in cases of social security fraud. The court also discussed the specific facts of the case, including the respondent's age, the number of offences, the duration over which they were committed, and the substantial amount of money involved. The court noted that Boyd had taken deliberate steps to avoid detection, which constituted an aggravating factor. However, it also acknowledged the mitigating factor of the respondent's age and the finding of remorse by the magistrate.

The Supreme Court concluded that the sentence imposed by the magistrate was manifestly inadequate. The court quashed the original order and imposed a sentence of 12 months imprisonment, with the possibility of release on recognisance after six months. The court also ordered a reparation payment to be determined at a later date. This decision underscores the importance of appropriate sentencing in cases of social security fraud to maintain adequate standards of punishment and to ensure general deterrence.

Orders