Huynh v Commonwealth Services Delivery Agency - [2014] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUYNH v COMMONWEALTH SERVICES DELIVERY AGENCY
[2014] SASC 143
Judgment of The Honourable Justice Peek
25 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction and sentence for offences against s 135.2, Criminal Code (Cwth).
The appellant was charged with seven offences of “obtain a financial advantage” contrary to s 135.2, Criminal Code (Cwth). It was alleged that he obtained payment of $15,756.98 in Centrelink benefits to which he was not entitled (because of his income from work) as a result of making false statements to Centrelink that he was not working or receiving income over a four-year period. The appellant was found guilty on all counts by a Magistrate and sentenced to 12 months imprisonment to be released after two months upon entering into a recognisance to be of good behaviour for 15 months. He appealed against conviction and sentence. As at the date of trial, and the appeal, $7400 had been “repaid” by way of Centrelink automatically withholding subsequent fortnightly pension payments, and the balance remained outstanding.
Held per Peek J (dismissing the appeal):
1. The language “obtain a financial advantage” used in s 135.2 of the Code creates an offence the subject matter of which encompasses ongoing conduct that gives rise to the payment of multiple payments or benefits. The counts were not duplicitous and did not each charge the appellant with the commission of more than one offence: Walsh v Tattersall (1996) 188 CLR 77; R v Taylor (1997) 6 Tas R 310 distinguished.
2. The evidence of previous overpayments to the appellant by Centrelink was admissible in relation to all counts, and the evidence in relation to counts 1 and 2 was cross-admissible in relation to counts 3 to 7 and vice versa.
3. The probative value of the evidence of overpayments significantly outweighed any prejudice arising from its admission and the evidence was admitted for a permissible use under s 34P(2)(a), Evidence Act 1929.
4. The charges were properly joined on the same complaint pursuant to s 4K(3), Crimes Act 1914 (Cwth).
5. The Magistrate was justified in considering that an immediate term of imprisonment to be the only appropriate sentence in all of the circumstances.
Criminal Code (Cth) s 135.2; Workers Rehabilitation and Compensation Act 1986 s 120(1); Crimes Act 1914 (Cth) Part 1B, 4K(3), 16A(1), 16A(2), 16(C)(1), 17A, 20(1)(b), 29D; Evidence Act 1929 (SA) ss 34P(2), 34R, referred to.
Walsh v Tattersall (1996) 188 CLR 77; R v Taylor (1997) 6 Tas R 310, distinguished.
Jovanovic v Director of Public Prosecutions (Cwth) (2012) 271 FLR 38, discussed.
R v Maiolo (No 2) (2013) 117 SASR 1; R v Morse (1979) 23 SASR 98; Kovacevic v Mills (2000) 76 SASR 404; Slowiak v Director of Public Prosecutions (Cwth) [2000] SASC 282, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Duplicity", "Joinder", "Imprisonment", "Centrelink", "Part Parenting Payment", "Newstart Allowance", "Income", "Declaration"

HUYNH v COMMONWEALTH SERVICES DELIVERY AGENCY
[2014] SASC 143
Magistrates Appeal

PEEK J. Appeal against conviction and sentence.
The appellant was charged with seven offences of ‘Obtain Financial Advantage’ contrary to s 135.2, Criminal Code (Cwth) (the Code). It was alleged that he obtained payment of Centrelink benefits to which he was not entitled (because of his income) as a result of making false statements to Centrelink that he was not working or receiving income. The total amount involved was $15,756.98. At trial, the appellant pleaded not guilty to each of the following seven counts:
1.Between about 29 December 2005 and about 31 August 2007 at Kilkenny or elsewhere, in the State of South Australia did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Criminal Code (Cwth) (the Code).
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with Stardrip Irrigation Pty Ltd. The defendant advised Centrelink that he was not currently working and then signed a Customer Declaration Form for Parenting Payment Partnered which stated that he was not currently working when in fact he was.
2.Between about 20 September 2007 and 20 November 2007 at Burnside or elsewhere, in the State of South Australia did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with Stardrip Irrigation Pty Ltd. By way of written statements in Application for Payment of Parenting Payment forms the defendant stated that he did not do any work or earn any income during the relevant periods when in fact he did.
3.Between about 15 May 2009 and 25 August 2009 at Burnside or elsewhere, in the State of South Australia did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with ACG National Pty Ltd. By way of written statements in Application for Payment of Parenting Payment forms the defendant stated that he did not do any work or earn any income during the relevant periods when in fact he did.
4.Between about 18 September 2009 and 20 October 2009 at Burnside or elsewhere, in the State of South Australia did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with ACG National Pty Ltd. By way of written statements in Application for Payment of Parenting Payment forms the defendant stated that he did not do any work or earn any income during the relevant periods when in fact he did.
5.Between about 13 November 2009 and 1 December 2009 at Burnside or elsewhere in the State of South Australia, did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with ACG National Pty Ltd. By way of written statements in Application for Payment of Parenting Payment forms the defendant stated that he did not do any work or earn any income during the relevant periods when in fact he did.
6.Between about 23 December 2009 and 7 April 2010 at Burnside or elsewhere in the State of South Australia, did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with ACG National Pty Ltd. By way of written statements in Application for Payment of Parenting Payment forms the defendant stated that he did not do any work or earn any income during the relevant periods when in fact he did.
7.Between about 20 August 2010 and 22 September 2010 at Burnside or elsewhere in the State of South Australia, did engage in conduct and as a result of that conduct obtained a financial advantage for himself from the Commonwealth knowing or believing that he was not eligible to receive that financial advantage; contrary to s 135.2 (1) of the Code.
Particulars
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Partnered, because of his income from employment with ACG National Pty Ltd. By way of the Internet using Centrelink’s Web Capture Program the defendant stated that he did not do any work nor earn any income during the relevant periods when in fact he did.
Her Honour delivered judgment on 15 November 2013 and found the appellant guilty on all seven counts. On 14 July 2014, convictions were recorded on each count and the appellant was sentenced (for all of the offending) to 12 months imprisonment to be released after serving two months upon entering into a recognisance to be of good behaviour for a period of 15 months.[1] The appellant appeals against both conviction and sentence. He was granted bail pending the outcome of this appeal.
[1] Pursuant to s 20(1)(b), Crimes Act 1914 (Cwth).
The background facts as found by the Magistrate
The background facts may be recited by adopting the Magistrate’s findings of fact which are not complained of in the grounds of appeal. They were as follows:
[7]On 10 July 1995 the defendant opened a joint bank account with Ms Xiufang Pei, with St George Bank. St George Bank is a subsidiary of Westpac Banking Corporation (Westpac) and operates in South Australia under its subsidiary Bank SA. This Bank SA account has operated continuously since 1995 (BSB and account number 105116/053889340).
[8]The defendant has received Centrelink Payments almost continuously since September 1997. Since 18 April 1998 he has been required to periodically report his income.
[9]Between 2000 and 2003 he reported income from Stardrip Irrigation Pty Ltd (Stardrip).
[10]On 16 May 2002 the defendant signed a Customer Declaration Form for New Start Allowance (NSA) at the Port Adelaide Centrelink office. On the same day he signed a Claim for Job Network Assistance while Looking for Work form and a Preparing for Work Agreement. He was granted and commenced to receive fortnightly payments of NSA. NSA is a means tested allowance and the recipient is under an obligation to declare any employment income. He supplied an Australian Passport E6300408 in the name Phuong Huynh. He was allocated the Customer Reference Number 502921134T and a Job Network Number 9878102005.
[11]From the period 3 May 2004 to present, the defendant has resided at 630 Greenhill Road, Burnside, South Australia.
[12]In 2004 Centrelink raised a debt against the defendant because he had been overpaid $108.60 in NSA for the period 20 November 2004 to 3 December 2004 because he under-declared his income from Virginia Farms. Repayments were subsequently [deducted] from the defendant’s Centrelink benefits.
[13]Centrelink raised a debt against the defendant of $9,945.00 for the period 19 June 2004 to January 2006 arising from the defendant under-declaring his earnings from Stardrip. Centrelink advised the defendant of these debts by letter and also spoke to him as part of the usual process when imposing recovery fees. Subsequently, repayments were deducted from the defendant’s Centrelink benefits.
[14]On 29 December 2005 the defendant attended a Centrelink office and discussed with a Centrelink officer his wish to apply for Parenting Payment Partnered (PPP). He was told of his obligation to report income. The defendant supplied the following forms of identification to Centrelink in support of this claim for PPP to establish identity before completing and signing all necessary documentation:
South Australian Driver’s Licence no. F85733 in the name Phuong Huynh.
Commonwealth Bank ATM receipts for card no 535316.
Bank SA ATM card 5602 6501 5406 9218.
Medicare card number 5100 56302 6, listing person 2 as Phuong Huynh.
Identification documentation for his partner Ms Pei.
[15]On 28 January 2006 the defendant was granted and commenced receiving PPP. This payment is a means tested income supplement and is granted with the condition of an ongoing obligation on the recipient to notify Centrelink of any employment income.
[16]Between 29 December 2005 and 20 November 2007, the fortnightly payments of benefits were paid into the St George Bank account operated by the defendant and Ms X Pei.
[17]Between 15 May 2009 and 22 September 2010, the fortnightly payments of benefits were paid into the defendant’s account, in the name, Mr Phoung Huynh trading as No Mess Around Security, (BSB and account number 065004/10484985).
[18]The defendant declared income from Virginia Farm, received during the following periods:
15 February 2002 and 16 December 2005.
30 November 2007 and 17 April 2009.
[19] The defendant did not declare income received from Stardrip between:
29 December 2005 and 20 November 2007.
[20]In 2009 Centrelink raised two debts against the defendant because he had been overpaid NSA and PPP because of his earnings with Stardrip. The defendant subsequently commenced working for ACG National Pty Ltd (ACG).
[21] The defendant did not declare income received from ACG between:
15 May 2009 and 22 September 2010.
Contact with Centrelink and requests to disclose income
[22]Prosecution presented copies of the defendant’s file with Centrelink. The file is comprised of hard copy documents and electronic files. The hard copy documents consisted of claim forms, medical certificates and records of correspondence about overpayments. The electronic records gave a full account of all contacts with the defendant, correspondence in which he was asked to detail his earning and a record of conversations with Centrelink staff. The online documents record all contact with the defendant, whether in person or online.
[23]During the relevant time the defendant never disclosed he was employed and earning income and so it is relevant to consider this history in the context of other periods when he did contact Centrelink and declare income as follows:
Between 2000 and 2003 the defendant declared to Centrelink that he was working and earning income from Stardrip.
Between 15 February 2002 and 16 December 2005 the defendant declared income from Virginia Farms.
On 16 May 2002 the defendant attended the Centrelink office at Port Adelaide for an interview with a Centrelink employee. During this interview the defendant provided his passport to establish [identity], before completing and signing all documents necessary to apply for a NSA.
On 7, 16, and 21 December 2005 the defendant contacted Centrelink regarding an application for Parenting Payment Partnered (PPP).
On 29 December 2005 the defendant attended the Centrelink office at Norwood to apply for PPP. He signed a Customer Declaration Form, which recorded that he was not working.
From 30 December 2005 and 27 January 2006, the period in which his claim for PPP was being processed the defendant completed, signed and lodged three Application for Payment Forms. In all forms he ticked, No, to the question, Did you do any work in the [relevant] period?
On 13 January 2006 he attended the Norwood office of Centrelink and submitted a signed application stating he was not working.
Once in receipt of PPP, between 27 January 2006 and 20 September 2007, the defendant was not required to submit documentation and actively report his income.
On 20 June 2006, during a routine review by Centrelink’s Call Centre of the defendant’s PPP benefit on 20 June 2006, the defendant advised that neither he nor Ms Pei had earned employment income during the review period.
From 20 September 2007 and 2 April 2010, the defendant was placed on a reporting regime, which required him to contact Centrelink and provide information for a Customer Update for PPP. He was required to complete 21 Applications for Payment Forms. In all forms he ticked the NO box on the form in answer to the question; Did you do any work in the [relevant] period?
[28]I accept the undisputed evidence of the directors of Stardrip; Mr Tan Nguyen, Mr Minh Son Dang and Mr Thai Au and find the defendant worked for Stardrip in the periods relevant to Count 1 and Count 2. He was the only employee of Stardrip and over the period relevant to the charges received 100 cash payments as income. The Tax Agent, Mr Evanoff confirmed that, although the directors did not comply with requirements to provide payslips, or attend in a timely manner to provide Group Certificates, or contribute to a superannuation scheme to cover the defendant’s employment, the business records confirm that the defendant was paid in cash on a weekly basis during the relevant period.
[29]I accept as reliable all documents presented by prosecution to show that PPP payments were made into bank accounts operated by the defendant in all periods relevant to these charges.
[30]I accept as reliable the evidence of the defendant’s earnings from Stardrip and ACG in the relevant periods.
[31]I accept the evidence of Mr Tan Nguyen that in the period covered by Counts 1 and 2, the defendant was employed by Stardrip on a casual basis and received income. All income was received in cash payments, usually on a fortnightly basis.
[32]I accept the evidence of Mr Tony McGrath and the content of his statements and find that the defendant recorded his hours of work on time sheets, he received the income into his bank account and he received payslips from ACG confirming the amount of income he received.
[33]During the period of alleged offending the defendant was employed on a casual basis by Stardrip and ACG and earned approximately $41,201.20 combined gross income. He declared none of this income to Centrelink.
[34]I find that in each charge period the defendant earned in excess of the $62.00 permissible per fortnight without a resulting reduction in entitlement.
The Magistrate’s specific findings on each count
The Magistrate made the following specific findings on each count:
Count 1
[35]I find that the defendant commenced employment with Stardrip in about July 2005. I find that from 1 July 2005 to 30 June 2006, he received $15 gross per hour and worked 13 hours per week. From 1 July 2006 to 31 August 2007, he received $15 gross and worked 25 hours per week. For this period of one year and eight months the defendant was paid PPP and a NSA. On 29 September 2005 he falsely stated he was not employed.
[36]Between December 2005 and January 2006, when applying for PPP the defendant made several false statements to Centrelink. During the interview process he told a Centrelink officer he was not working. He was required to sign a declaration for PPP and confirmed his prior advice that he was not employed. Whilst his application for PPP was being processed, the defendant remained on a reporting regime, which required him to report fortnightly. On three forms he was required to submit during this period he falsely stated he did not do any work or earn any income. As a result of the false statements he was granted PPP and was not required to actively report his income.
[37]On 28 January 2006 the defendant’s Centrelink payment was re-indexed from NSA at PPP. On 31 January 2006 he was sent a letter confirming the grant of PPP and advising the defendant how to report his income. The defendant received PPP between 14 February 2006 and 6 September 2007. Between January 2006 and August 2007 the defendant was not required to actively report his income because of his false statement that he was not working.
Count 2
[38]In August 2007 the defendant was placed on a reporting regime and in order to stimulate his payment of PPP he was required to declare his income. Between 20 September 2007 and 20 November 2007, he completed six written applications for PPP and lodged them in person. These forms covered six consecutive fortnights and in each form the defendant declared that he did not do any work or earn any income and as a result was paid PPP. At the time he was employed and received income from Stardrip.
Counts 3-7
[39]In March 2009 the defendant was placed on a fortnightly reporting regime and remained on a reporting regime during the periods covered by these charges. He lodged 21 applications for PPP forms and in the three fortnights, the subject of count 7, the defendant used Centrelink’s online Web Capture system and positively stated he did not work and did not receive any income. These were false statements because it is undisputed that between 30 April 2009 and 22 September 2010, the defendant was employed by ACG on a casual basis as a security officer. The defendant recorded his hours of work with ACG on time sheets and received payslips that corresponded to the time sheets. The income received was paid into the Commonwealth Bank Account in the name Mr Phuong Huynh trading as No Mess Around.

Her Honour proceeded to find that as a result of failing to disclose the above income received from Stardrip and ACG, the appellant received an overpayment of Parenting Payment Partnered of $15,756.98 to which he was not entitled. Her Honour further found that the appellant acted deliberately (that is, with the required intent) and consequently found the appellant guilty of each count.
The grounds of appeal
Although they were originally more numerous, the grounds of appeal were pruned and re-numbered by the appellant. It is to be noted that there is no ground of appeal complaining of any of the factual findings by the Magistrate. The grounds of appeal as they were finally amended appeared as follows:
1.     The convictions were unsound by virtue of:-
1.1     the charges were defective for duplicity;
2.The learned magistrate erred in refusing the appellant’s application for a separate trial in respect to counts 1 and 2.
3.The learned magistrate erred in determining that the evidence is respect to counts 1 and 2 was cross-admissible with the evidence in counts 3 to 7.
4.The learned magistrate erred in determining to admit evidence of previous overpayments.
5.The learned magistrate erred in the use of evidence of overpayments contrary to section 34P of the Evidence Act.
7.     The sentence was manifestly excessive.
Ground 1 of appeal: Duplicity
As to ground 1 of appeal, the appellant stated that he relied on “the principle in Walsh v Tattersall”;[2] he submitted that “each count is duplicitous in that it charges the defendant with the commission of more than one offence.”
[2] (1996) 188 CLR 77.
The critical problem with the appellant’s submissions is that they simply do not address the differences between the offence under consideration in Walsh v Tattersall[3] and the offence the subject of the present convictions. In Walsh, s 120(1), Workers Rehabilitation and Compensation Act 1986 (WRAC Act) provided:
A person who —
(a)    obtains by dishonest means any payment or other benefit under this Act;
(b)   dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c)    dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading, is guilty of an offence.
[3] (1996) 188 CLR 77.
In the present case s 135.2 of the Code provides:
135.2 Obtaining financial advantage
(1)     A person is guilty of an offence if:
(a)    the person engages in conduct; and
(aa)as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab)the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b)     the other person is a Commonwealth entity.
In Walsh v Tattersall,[4] each of the Justices comprising the majority (Gaudron, Gummow and Kirby JJ) regarded the correct characterisation of the statutory offence as critical. In both the joint judgment of Gaudron and Gummow JJ[5] and the separate judgment of Kirby J,[6] their Honours found that the WRAC Act created an offence of receiving an individual payment or benefit.
[4] (1996) 188 CLR 77.
[5] Walsh v Tattersall (1996) 188 CLR 77, 91.
[6] Walsh v Tattersall (1996) 188 CLR 77, 111.
In R v Taylor,[7] Zeeman J (with whom Wright J concurred on this aspect) succinctly summed up the essential commonality of the two judgments thus:
Although the members of the majority reached their conclusion that the charge was bad for somewhat different reasons, each of them was of the view that the statute under which the appellant was charged contemplated that the obtaining of a particular benefit or payment was a separate offence and that therefore it was impermissible to charge the obtaining of various benefits and payments as one offence. Whether that is because the statute did not create such an offence (as held by Gaudron and Gummow JJ) or because the charge was duplicitous as charging several offences in one count (as held by Kirby J) did not affect the ultimate result that the charge was bad.
[7] (1997) 6 Tas R 310, 340.
In Walsh v Tattersall, Gaudron and Gummow JJ commenced their joint judgment with the following overview:[8]
The question upon which the appeal turns is not whether in a single count the appellant was charged with more than one offence. It turns upon an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act). In our view, the appellant was not so charged and his appeal succeeds.
[8] (1996) 188 CLR 77, 87-89.
Their Honours referred to features of the legislation and concluded:
Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained “by dishonest means”. In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. But there is no offence created of “[obtaining] by dishonest means payments or benefits under [the Act]”. Yet count 1 was so expressed.
… [T]he result is that the appellant was not charged with an offence created by the Act. The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of “payments or benefits” which were made under the Act and obtained by dishonest means.
Thus Gaudron and Gummow JJ held that the statute created, and only created, an offence whose subject matter was the receipt of a particular payment or a particular benefit; the statute did not create an offence whose subject matter was the receipt of multiple payments or multiple benefits. Their Honours therefore concluded that since the complaint on which the appellant had been convicted purported to charge an offence whose subject matter comprised the receipt of multiple payments and multiple benefits, it failed to charge an offence known to the law; the consequence was that the appeal necessarily succeeded.[9]
[9] It can be seen (and particularly with the benefit of hindsight), that the argument could have stopped there. However, there are very many authorities dealing with the vexed question of when a Court will, and will not, find that the particular wording of a charge is such as to purport to charge an offence “not known to the law”; to say that some of those authorities are not easily reconcilable or that it is difficult to predict in advance to what conclusion a Court may come in this area, would be mild statements.
Kirby J similarly noted:[10]
The foundation for the appellant’s argument was an analysis of the provisions of the Act. There are several indications in the language and history of s 120 of the Act which suggest that the legislature contemplated that each payment or benefit under the Act obtained by dishonest means was to constitute a separate criminal offence. These are:
1.    Section 120, the provision for criminal offences appears in a statute which provides for periodic payments and for payments of “medical, rehabilitation and like expenses” where recoverable which, of their nature, accrue periodically.
2 Section 120(1)(a) of the Act, under which the appellant was convicted, uses the word “any” to describe a “payment or other benefit” which constitutes the offence. But the succeeding paragraph uses the indefinite article “a”. These words are apt to give rise to a separate offence for a single occasion of dishonesty occasioning each payment.
3 The history of the section reinforces this conclusion by the greater specificity of s 120(1) after the amendment of the Act in 1991. Whereas previously the Act talked in terms of “any benefit”, thereafter the section was expressed in terms of “a payment”, “a statement” and “a claim”.
4      The addition of the provision contained in sub-s (3) requiring an order to “make good any loss” and to reimburse costs of “investigating and prosecuting the offence”, following conviction of an offence against the section, indicates the importance being attached to identifying “the offence” in respect of which the loss and costs were to be recoverable by such order.
5      The amendment of s 122 of the Act to insert a new sub-s 3(a) requiring that a prosecution for an offence against the Act must be commenced “within three years after the date on which the offence is alleged to have been committed” also indicates a legislative purpose of attaching consequences to the act of obtaining a particular payment or benefit. Otherwise, if all charges could be rolled up in a single count, certain payments and benefits might be outside the three year limit and hence incapable of founding a prosecution at all. Whilst this was not so on the facts of the present case involving the appellant, it was clearly a possibility envisaged by the legislature.
[10] Walsh v Tattersall (1996) 188 CLR 77, 100-101.
Kirby J then stated:
These considerations therefore confirm that the Act is concerned with individual payments. Offences must therefore be charged individually. …
The relevant features of the Code
A comparison of the features of s 120, WRAC Act relied upon by the majority in Walsh v Tattersall and the relevant features of the offence created by s 135.2 of the Code, points to a different conclusion as to the legislative intent concerning the latter offence. This is best illustrated by referring to Kirby J’s indicators reproduced above.
As to indicator 1, Kirby J referred to the fact that s 120(1), WRAC Act dealt with claims of a specific and not necessarily recurring nature. His Honour’s reference to “medical, rehabilitation and like expenses” best illustrates this proposition: such expenses are likely to be specific and to be incurred by reference to specific statements by the person who is seeking a payment in relation to such a matter. By contrast, the payments sought under the Code are basically constant in amount and recur at regular intervals.
As to indicator 2, Kirby J referred to the use of the word “any” and the indefinite article “a” in s 120(1), WRAC Act. But under the Code, the term used is “any financial advantage” which is a much broader term than “payment” or benefit”. A “financial advantage” includes, and is very apt to describe, being in a position where a series of payments are expected to be received at regular intervals. “Obtaining a financial advantage” includes the case of a person making one statement, or any greater number of statements, in order to set in train (or maintain) the situation of a series of payments being made (subject to the provision, or confirmation, by him of information as required by the authorities from time to time).
As to indicators 3, 4 and 5, these matters do not appear to be applicable to a consideration of s 135.2 of the Code.
Once one has correctly characterised the present offence, the objection as to duplicity falls away. Perhaps ironically, Walsh v Tattersall then becomes the repository for guidance as to how the different type of offence against s 135.2 of the Code may be prosecuted; such an offence may now be considered to be, in the words of the minority, constituted by “a course of conduct” by the accused. Thus Dawson and Toohey JJ stated:[11]
It is true that count 1 did embrace a number of payments. But the case against the appellant was not that on each occasion he received a payment there was a separate dishonest pretence that he was incapacitated for work. … The case against the appellant was that in the period specified, between October 1992 and October 1993, there was, in the words of Prior J, a course of conduct which amounted to one compendious false pretence of incapacity for work. In other words, the appellant dishonestly put forward to his employer a case of incapacity for work and dishonestly maintained that case by presenting medical certificates and receiving payments under the Act. (Emphasis added)
[11] Walsh v Tattersall (1996) 188 CLR 77, 83.
On the evidence and the findings of the Magistrate, there can be no doubt that the appellant here indulged in a deliberate course of conduct in that he put forward to the Commonwealth a case of entitlement to parenting payments and dishonestly maintained that case by presenting false statements and receiving payments under the Act.
I consider that I have already said enough to dispose of this ground but I will briefly refer to two further cases referred to by counsel.
The first case is that of R v Taylor[12] upon which counsel for the appellant sought to place substantial reliance by referring (I might say, in vacuo) to the italicised portion of the following longer passage from the judgment of Underwood J:
The Crimes Act, s 29D does not create a separate offence for each payment but I am of the opinion that the indictment is nonetheless bad for duplicity and the convictions must be quashed. The indictment and particulars pleaded that on thirty-one occasions over 6½ years the appellant dishonestly made statements to the Department of Social Security with the intent and the result of obtaining benefits. Although the statute creating the offence did not fix on the obtaining of a benefit as in Walsh v Tattersall (1996) 139 ALR 27, the indictment and particulars together focus on the obtaining of benefits as a result of making a specified number of false statements. The indictment and the particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs. The pleaded case focused on precisely identified false representations, each made with the intention of obtaining the benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made. The indictment and particulars did not allege a breach of s 29D upon receipt of each payment, but they did allege a breach of that section each time a particularised false statement was made and payments of benefit resulted. (Emphasis added)
[12] (1997) 6 Tas R 310.
The submissions of the appellant ignored the fact that the charge in R v Taylor was of defrauding the Commonwealth contrary to s 29D, Crimes Act 1914 (Cwth). This was an offence of very broad ambit: “A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence”.
The point being made here by Underwood J, was that this offence was not like the offence in Walsh v Tattersall which the majority of the High Court held created, and only created, a charge which was confined to the obtaining of a particular benefit. Rather, a charge under a broad provision such as s 29D, Crimes Act 1914 (Cwth) could be framed in at least two ways. First, it could be framed so as to be restricted to one payment (a specific charge). Second, it could be framed so as extend to a course of conduct by the accused (a course of conduct charge). In the passages above, Underwood J held that the prosecution had elected not to present a course of conduct case but had in effect laid a number of specific charges and then invalidly rolled them up in the same count[13] rather than lay a separate count for each such specific charge.
[13] There were three such counts (because the maximum penalty changed over the relevant time period) with a number of such specific charges rolled up in each count.
This point was emphasised by Zeeman J (with whom Wright J concurred on this aspect). His Honour stated: [14]
It follows from what I have written that the Crown alleged thirty-one separate deceits on the part of the appellant and therefore thirty-one acts of defrauding. The views expressed by Kirby J in Walsh v Tattersall (1996) 70 ALJR 884, if adopted, would inevitably require the conclusion that that required that each of those acts be the subject of a separate count. That view should be adopted, even though the other members of the court who formed the majority in that case found it unnecessary to express a relevant view. The observations made by Dawson and Toohey JJ, who were in dissent in that case, require the same conclusion. Their Honours said, at 886:
… But the case against the appellant was not that on each occasion he incapacitated for work. That is a case that the prosecution might have sought to make out. If it had, the count would have alleged the commission of a number of offences. A question might then have arisen as to the joinder of those charges in one complaint. [See s 51(1) of the Summary Procedure Act.] But it would have been a different case to the one which the appellant faced.[15]
In the present case the Crown asserted that the appellant had made thirty-one separate dishonest pretences in various terms but all inconsistent with the true position, namely that she was then cohabiting with her husband, and that each had resulted in a number of payments of benefit being made to her. On the basis of what was said by each of Dawson, Toohey and Kirby JJ, at least thirty-one separate charges of defrauding the Commonwealth were encompassed by the three counts contained in the indictment.
[14] (1997) 6 Tas R 310, 340.
[15] Portion of this extract has been omitted.
Thus, the appellant’s reliance on R vTaylor was entirely misconceived. I should add that counsel’s written submission reproduced the italicised portion only of the passage from the judgment of Underwood J (appearing at page 323 of the Report) and then, in immediate juxtaposition, reproduced a further passage in such a way as to suggest that it also came from the judgment of Underwood J. In fact this second passage comes from the judgment of Wright J (appearing at page 326 of the Report) and is as follows:
I must say that although such a formulation has found favour as the basis for establishing fraud in some cases in the past, notably in cases in which the accused’s deceit has induced a course of conduct which had the potential to cause financial loss to some other person or entity at a later date, it seems to me to have been an inappropriate, if not erroneous, basis upon which to leave the case to the jury in the present circumstances.
The placement of these two passages in juxtaposition, and out of context, is highly misleading. It strongly suggests that the opening words of the second passage (“such a formulation”) refers to what was being considered in the first passage by Underwood J, namely a rolled up charge. In fact, a close reading of Wright J’s judgment discloses that his Honour was in fact here addressing in this passage a quite different, and rather esoteric matter, namely the question of charging “deceit” under s 29D, Crimes Act 1914 (Cwth) on the basis that the activity of an accused had “imperilled the economic interests of the Commonwealth”. As it happens, that topic might be a not uninteresting excursus, but it has nothing to do with the issues in the present case.
The second and final case I mention in connection with this ground of appeal is that of Jovanovic v Director of Public Prosecutions (Cwth)[16] and the following obiter comment in the judgment of Gray J (referred to by counsel for the respondent):[17]
The form of the complaint in the present proceeding does raise the question of possible duplicity. It is to be accepted that the offence charged relates to a number of separate acts. However, they are a number of acts of a similar nature committed by the defendant with the common purpose of dishonestly obtaining payments from the Commonwealth by way of Newstart Allowance and they are connected in the sense of being performed in an ongoing course of similar conduct. They can be fairly regarded as forming part of the same criminal enterprise. Accordingly, in my view, they are not duplicitous.
[16] (2012) 271 FLR 38.
[17] (2012) 271 FLR 38, 51.

I simply note that Gray J had, prior to this passage, referred to the fact that the appellant had engaged “in a course of conduct”. His Honour’s remarks are no doubt to be taken in the context that the offences in Jovanovic were against s 135.2(1) of the Code (which offence is to be characterised in the way explained above) rather than an offence like that under consideration in Walsh v Tattersall.
I reject ground 1 of appeal.
Grounds 3 and 4 of Appeal: Admissibility and cross-admissibility of evidence
The appellant contended that the Magistrate erred, first, in ruling that the evidence of previous overpayments was admissible in relation to any count and, second, in ruling that the evidence directed to counts 1 and 2 was admissible in relation to counts 3 to 7 (and vice versa). I consider that the Magistrate did not err in either regard.
As to the prior overpayments, the evidence was that the appellant had two previous debts to Centrelink, one of $108.60 and the other of $9,945.00. Both debts had been raised because the appellant had under-declared his income to Centrelink and had thereby received a level of benefits to which he was not entitled. On each occasion, the appellant had been notified of these debts by Centrelink, by letter and phone call, and it was explained to him why they had occurred. In my view, this evidence had relevance other than as disclosing a propensity to commit such offences. Rather, it was highly probative of the propositions that the appellant had a good knowledge and understanding of Centrelink’s practices and requirements; that he knew that the result of his non-declaration of income would be that he would receive benefits to which he was not entitled; and that his actions in falsely declaring his employment and income status to Centrelink were deliberate and not accidental.
As to cross-admissibility, the evidence supporting any one of the counts on the complaint was also relevant to, and highly probative of, each of the other counts as tending to prove the same propositions referred to immediately above in the context of past overpayments.
The Magistrate’s reasons
The Magistrate correctly expressed the position thus:
[24]The evidence supporting each count is admissible in proving every other count as there is an underlying unity in the defendant’s course of behaviour. The evidence of the defendant’s actions in relation to each count is highly probative in relation to each other charge because of the defendant’s course of conduct over a number of years in falsely detailing his employment status and income to Centrelink.
[25]I confirm my previous ruling and find the defendant’s history of prior overpayments, particularly the $9,945.00 overpayment he received for the period immediately prior to the period covered in count 1 is admissible in relation to all counts to show that at the relevant time:
The defendant has a history of experience with Centrelink in reporting income and has episodically complied with these requirements since 1998.
The defendant was aware that a debt would be raised as a consequence of failing to correctly notify Centrelink of any incomes earned in any periods where an entitlement to NSA or PPP is claimed.
The defendant was aware that the NSA and PPP are means tested and his benefit would be reduced if he earned in excess of $62.00 per payment period in any period in which he claims NSA or PPP.
The defendant had knowledge of his obligations to currently state his income and not make false declarations to Centrelink.
The defendant obtained knowledge of his obligations through his dealings with Centrelink, including his need to comply with reporting conditions and accurately state the amount of income.
The defendant was aware in 2006 that he faced reduced benefits because of a $9,945.00 overpayment.
The defendant was aware of all the avenues available to contact Centrelink and declare income; by telephone, in writing and the Internet.
[26]I find that during the periods of the alleged offences the defendant received 95 letters from Centrelink which were mostly letters enclosing application for Payment Forms for PPP. These letters variously included account statements, letters advising of approval for PPP, the obligations of PPP and debts caused by Centrelink. There is no doubt that the defendant received this correspondence as he responded as required.
[27]I reject as a reasonable possibility that the defendant could have misinterpreted any of the questions, which asked if he had done any work during the relevant periods. I find his denial that he did any work was false. He was well aware of his responsibility under the reporting regime and always answered questions about his income, filled in all documents either in writing or online and submitted all in a timely manner.
I reject grounds 3 and 4 of appeal.
Ground 5 of appeal
I consider that the probative value of the evidence referred to above substantially outweighed any prejudice arising from its admission and that it was admitted for a permissible use under s 34P(2)(a), Evidence Act 1929. The Magistrate correctly assessed that the permissible use could be kept sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being improperly used; and her Honour correctly identified the purpose for which it could be used as required by s 34R, Evidence Act 1929.[18]
[18] R v Maiolo (No 2) (2013) 117 SASR 1, 23.
I reject ground 5 of appeal.
Ground 2 of appeal: Joinder and severance
Section 4K(3), Crimes Act 1914 (Cwth) provides as follows:
Continuing and multiple offences
…
(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. …
As to legal joinder, the charges were properly joined on the same complaint pursuant to s 4K(3), Crimes Act 1914 (Cwth). They were offences against the same provision of a law of the Commonwealth; they related to a series of offences of the same or similar character; and there is a clear legal and factual similarity between each of them. Each count charges that the appellant obtained from the same victim (Centrelink) benefits to which he was not entitled by falsely representing that he was not working or earning income. That the appellant worked for different employers during the charge period is here of no significance to this matter of legal joinder.
As to discretionary severance, the only matter of any potential substance would appear to be the appellant’s contention that counts 1 and 2 should have been severed from counts 3 to 7 if the evidence on the various counts is not all cross-admissible. However, I have above determined the matter of cross-admissibility adversely to the appellant in the context of grounds 3 and 4 of appeal. I cannot discern any error in the Magistrate’s decision to hear all of the counts together and to refuse severance.
I reject ground 2 of appeal.
Disposition of the appeal against conviction
No ground of appeal against conviction is made out. The appeal against conviction is dismissed.
The appeal against sentence
The appeal against sentence was argued on the basis that the appellant should have been released on recognisance immediately, rather than being required to serve two months imprisonment. It is doubtful if the complaint that the appellant was not immediately released (equivalent to a complaint that a sentence was not wholly suspended) was within ground 7 of appeal as filed (“manifestly excessive”) but the appellant was permitted to argue his case as if it were within the ground of appeal.
The sentence imposed by the Magistrate was to be determined in accordance with Part 1B, Crimes Act 1914 (Cwth) ss 16A(1) and 17A respectively:
Section 16A(1): The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence
Section 17A: Sentence of imprisonment cannot be imposed unless the Court considers it is the only appropriate sentence in the circumstances of the case.
The sentence is to be considered on appeal in the light of the prescribed maximum penalty; the general standards of sentencing with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[19]
[19] R v Morse (1979) 23 SASR 98, 99-100.
Here, the offending was a sustained course of conduct of more than two years over a non-continuous period of four years. During the period charged, the appellant was employed and earned a total of $41,201.20 gross combined income from Stardrip Irrigation Pty Ltd and ACG National Pty Ltd. As a result of his decision not to declare his income to Centrelink, he received 71 payments of Parenting Payment to which he was not entitled. The total amount of benefit defrauded, $15,756.98, was significant.
Her Honour properly took into account the relevant factors referred to in s 16A(2), for the purposes of s 16A(1), Crimes Act 1914 (Cwth) including:
·The summary of facts summarising (and incorporating) the nature and circumstances of the offending, consistent with the learned Magistrate’s findings during the trial proceedings;
·The appellant’s personal circumstances and antecedents including the material in the psychological and pre-sentence reports provided to the court; and
·the financial circumstances of the offender: Crimes Act 1914, (Cwth) s 16C(1).
Restitution or reparation
The learned Magistrate was required to take into account any action taken by the appellant to make reparation.[20] It was earnestly argued that the appellant had received insufficient credit for the fact that the Commonwealth had received “substantial reparation of the total defalcation of $15,756.98”. It transpired that what had occurred was that during the sentence proceedings, the Magistrate had been informed by the prosecutor that approximately $7,400 of the appellant’s overpayment had been “repaid” to Centrelink by way of automatic withholdings from his subsequent fortnightly Centrelink benefit. The Magistrate ordered that the full balance amount outstanding (approximately $8,356.98) was to be repaid. On the appeal, I was informed that the appellant had made no such payment or part payment.
[20] See Crimes Act 1914 (Cwth) s 16A(2)(f)(i); Kovacevic v Mills (2000) 76 SASR 404; Slowiak v Director of Public Prosecutions (Cth) [2000] SASC 282.
As I understood the appellant’s submission, both a contrition element and a utilitarian element was to be discerned here on two bases. First, the appellant had refrained from objecting to the Commonwealth withholding the pension payments totalling approximately $7,400. Second, the Magistrate had ordered him to pay the outstanding amount of approximately $8,356.98 and it should be presumed that he will do so.
I consider that the Magistrate dealt with the matter fully and most patiently. It was not established that the Magistrate did not give the appellant adequate credit in this regard or that she erred in any other way.
Disposition of the appeal against sentence
The maximum penalty for each offence was 12 months imprisonment and/or a fine of $6,600. The appellant engaged in a lengthy trial followed by an appeal which was wholly unmeritorious. He clearly does not deserve the leniency he may have received for a plea of guilty on a contrition or a utilitarian basis.
The Magistrate was justified in considering imprisonment to be the only appropriate sentence in the circumstances here. Her Honour properly declined to order the immediate release of the appellant. Such a decision was well within her discretion; it is well established that in cases of sustained and deliberate welfare fraud such as the present, an order for imprisonment, with at least some of the imprisonment actually to be served, is often imposed, even for a first offender.[21]
[21] Kovacevic v Mills (2000) 76 SASR 404, 411-412.
In my view, the sentence was lenient. No error by the Magistrate is established. The appeal against sentence is dismissed.
Orders
1The application to extend time within which to appeal against conviction and sentence is granted.
2The appeal against conviction is dismissed.
3The appeal against sentence is dismissed.