Hyde v Mason
[2004] QDC 72
•1/04/2004
DISTRICT COURT OF QUEENSLAND
CITATION: Hyde v. Mason [2004] QDC 072 PARTIES: PETER RICHARD HYDE (appellant) and GLEN WILLIAM MASON (respondent) FILE NO/S: 8 / 03 DIVISION: District Court at Maroochydore PROCEEDING: Appeal ORIGINATING
COURT:Magistrates Court Maroochydore DELIVERED ON: 1 April, 2004 DELIVERED AT: Maroochydore HEARING DATE: 26 March, 2004 JUDGE: K.S. Dodds, DCJ ORDER: Appeal dismissed, conviction and sentence of the
Magistrate confirmed.CATCHWORDS: APPEAL – S. 222 of the Justices Act 1886. Appeal against
conviction and sentence. Whether charges under the
applicable Social Security legislation were duplicitous.SENTENCE – Whether the sentence imposed was manifestly excessive in terms of reparation payable by the appellant. Cases Cied: Walsh v. Tattersal (1996) 188 CLR 77
R v. Amani Moussad (1999) NSW CCA 337
R v. Hamzy(1994) 74 A Crim R 341
R v. F (1996) 90 A Crim R 356Statutes Cited: Social Security Act (Cth) 1991, S. 1347
Social Security (Administration) Act 1999, S. 215COUNSEL: Mr C. Chowdhury – Commonwealth Director of Public
Prosecutions (respondent)Mr P. Hyde – self represented (appellant) SOLICITORS:
This is an appeal against conviction for two offences of contravening a section of the applicable Social Security legislation, by knowingly obtaining payments of Newstart Allowance which was only payable in part.
The charges upon which the appellant was tried were;
1 Between the 9th of May 1998 and the 19th of March 2000 at Caloundra (the appellant) contrary to section 1350 of the Social Security Act 1991 as amended, contravened S. 1347 of the said Act, in that he knowingly obtained payment of a Social Security payment, namely newstart allowance under the said Act, which was only payable in part” 2 Between the 20th of March 2000, and the 5th of May 2000 at Caloundra, (the appellant) did contrary to S. 217 of the Social Security (Administration) Act 1999 as amended contravened S. 215 of the said Act in that he did knowingly obtain payment of a social security payment, namely newstart allowance under the said social security law, which was only payable in part.
The two charges covered the period 9 May 1998 to 5 may 2000. During this period the Social Security Act 1991 was repealed and replaced by the Social Security (Administration) Act 1999.
In each Act the offence provision was in similar terms. S. 1347 of the 1991 provided:
“A person must not knowingly obtain;
(a) A payment of a pension, benefit or allowance under this Act … which is
(b) only payable in part.”
Section 215 of the 1999 Act provided “A person must not knowingly obtain;
(a) Payment of a social security payment under the social security law … which is
…..(b) only payable in part
Two grounds of appeal are set out in the Notice of Appeal;
• The charges were duplicitous; • The verdict was unsafe and unsatisfactory.
The Notice of Appeal was settled by a solicitor from Legal Aid Queensland. At the hearing of the appeal the appellant appeared on his own behalf. He wished to add another ground of appeal, namely, that the sentence was excessive.
The magistrate’s reasons clearly set out the facts on which his decisions were based. The appellant did not give evidence at the trial. The Magistrate accepted the evidence from the prosecution witnesses.
The factual situation underlying the convictions can be shortly stated. On 23rd July 1997 the appellant lodged an application for newstart allowance which was approved. For the purposes of the case it was established that newstart allowance was paid fortnightly between 9 May 1998 and 5 May 2000. On 2 February 1998 the appellant and his wife purchased a business which they then operated.
To continue to receive the newstart allowance which had been approved, every fortnight the appellant was required to complete a form which is described as an “Application for payment of newstart / youth training allowance” (the fortnightly form). The form contains a number of questions relating to the previous fortnight. The form is headed, “If you want this payment to continue;
• Fill in this form on the … (the last day of the fortnight); • Answer all the questions; • Return this form early on … (the last day of the relevant fortnight is specified) or next working day; • Payment will stop if this form is returned late ...”
Question 5 on the form reads “We need to know how much you are earning so we can work out how much to pay you. You must also tell us if you are self – employed. Did you do any part time or casual work in the period (the preceding fortnight)”. If the answer was yes, details were required.
Question 6 on the form read “If you get married, or start living with someone as if you are married, you must tell us. We need to know how much your partner earns so we can work out how much we can pay you”. If the answer was “married” etc, it asked if the partner worked in the period.
Question 9 asked whether any of the things listed below happened during the period the form related to. The list included whether the claimant or the claimant’s partner got any money during the period the form related to. If the answer was yes details were required.
The fortnightly forms signed and lodged by the appellant over the period the charges related to were part of the evidence before the magistrate. To all these questions on each fortnightly form lodged by the appellant over the period the charges related to, the appellant answered “no”.
Profit and loss statements for the appellants’ business for the years ended 30/6/98, 30/6/99, and 30/6/00, were in evidence before the Magistrate. So were bank statements for a Westpac bank account of the appellant and his wife into which the newstart allowance was paid. The bank statements showed cash deposits in addition to newstart allowance.
Also in evidence before the Magistrate was a record of interview between the appellant and complainant in which the profit and loss statements and the bank statements including the deposits in addition to newstart allowance were produced and discussed. It is not necessary to recount detail of the discussion. It is sufficient to say that what the appellant said about these documents and what they contained supported the Magistrate’s findings.
In his oral submissions as I understood them the appellant seemed to be saying three things. Firstly, that there should not have been two charges, rather only one charge, secondly that the Australian Tax Office in determining taxable income for a business has changed from accrual accounting, to cash accounting, that the plaintiff’s profit and loss statements in evidence were based upon accrual accounting and thus the profit for each year was incorrectly shown, the Australian Tax Office has now adjusted the taxable income for those years using cash accounting, and the amount of reparation ordered by the Magistrate was therefore incorrect. Thirdly, the Magistrate should not have been satisfied it was shown the appellant had knowingly obtained the payments to which the charges related because in business it is not known until the end of the financial year what if any profit has been achieved. He also submitted the sentence was excessive, which as I understood it is related to the amount of reparation.
At the beginning of the trial before the Magistrate the solicitor who acted for the appellant submitted the charges were duplicitous. The prosecutor submitted to the contrary. He said the prosecution could not allege in any particular fortnight that the appellant or his wife received enough income to affect entitlements, but could show that over the period 9 May 1998 to 5 May 2000 the appellant received income such that he was only entitled to part of the Newstart allowance he had been paid. The only reason for two charges instead of one was the repeal of the 1991 Act and the enactment of the 1999 Act.
The elements of the offences with which the appellant was charged are the same, namely, knowingly obtaining the payment of newstart allowance which was only payable in part, in other words, to which the appellant was not, according to the legislation supporting payment of newstart allowance entitled. The prosecution was therefore required to prove that the appellant knowingly obtained payment of newstart allowance and the payment of the newstart allowance received was in fact only payable in part.
Determination of the amount of newstart allowance payable depended on what other income the appellant had received. Disclosure of receipt of other income was part and parcel of determining what newstart allowance was payable. The fortnightly form made that clear. Proof of income from some other source during the period when newstart was being paid, and proof of failure to disclose other income and sources of income on any one or more fortnightly forms may provide evidence from which an inference may be drawn, that the recipient knowingly obtained newstart allowance which was in fact payable only in part. The magistrate also had the evidence of the appellant’s answers in the record of interview.
The two charges reflected the repeal of the earlier Act and the commencement of the later Act. It can be seen that the Prosecution charged each offence as a continuing offence of knowingly obtaining newstart allowance, which because of the money the appellant and his wife received in their business not disclosed to Centerlink, was only payable in part. It was this method of framing the charges, which in the written outline of argument supporting the appeal, was asserted to be duplicitous. Put simply, it was submitted that the offence was committed, if at all, each time the fortnightly form containing incorrect or deficient answers to the questions was lodged with Centerlink. It was submitted that Walsh and Tattersal (1996) CLR 77 was authority supporting the appellant’s contention the charges were duplicitous.
In Walsh v. Tattersal, Walsh was charged with, over a twelve month period, obtaining payments or benefits in the nature of workers compensation by dishonestly pretending that he was incapacitated for work. The relevant statutory provision read “a person who obtains by dishonest means any payment or other benefit under this Act is guilty of an offence”.
Different views were expressed by members of the High Court. Dawson and Toohey JJ held that the compendious charge did not produce duplicity “the dishonest means alleged against the appellant was a continuing false pretence … by receiving payments on the basis that he was incapacitated for work”, page 85. Gaudron and Gummow JJ considered that Walsh had not been charged with any offence created by the statute. The section under which the charge was laid did not embrace the plural “payments” or “benefits”, despite the provisions of the Acts Interpretation Act. Rather it created a discrete offence upon the payment of any one payment or benefit. This was to be “contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs … There upon proof of a series of material facts, guilt of the offence may follow although no particular fact suffices of itself, page 91. Kirby J who was the other member of the majority said “This Court should adhere to its long standing insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence” page 112. Regarding whether a charge is duplicitous or not, he said “Ultimately what is presented is a question of fact and degree for decision in each case” page 108.
In Rv. Amani Moussad (1999) NSW CCA 337 21 October 1999, Moussad had been charged under Section 29 D of the Crimes Act 1914 (Cth) with and was convicted of an offence of defrauding the Commonwealth by obtaining money by way of childcare fee relief to which she was not entitled between 7 January, 1991 and 12 July, 1993. She had received monies pursuant to claims she submitted for nine quarters commencing in 1991 and ending with the first quarter of 1993. The section provided that “a person who defrauds the Commonwealth is guilty of an indictable offence”.
An issue on appeal was the trial judge’s decisions that the charge was not bad for duplicity and that the prosecution could lead evidence of the multiple false claims. The Court of Appeal reviewed a number of decisions of other courts. It held the trial judge’s decisions were correct. It found there was no clear ratio in Walsh v. Tattersall and in that circumstance it would continue to follow R v. Hamzy (1994) 74 A Crim R 341 and R v. F (1996) 90 A Crim R 356 “where the Crown has framed and relied upon a single count alleging a criminal enterprise” It said “the Courts in this State have found that “enterprise” counts have their place in drug supply and fraud cases where it is important to stress the overall criminality.” Para 54 … In some of the fraud cases as part of systematic and long term defrauding, small sums are taken by over-claims and other dishonest means. Each instance may well involve only a small sum which can be dealt with by a magistrate. Often the frauds continue for some years. The smaller the sum taken the less likely it is to be investigated and discovered. Despite the arguments to the contrary, if there had been a series of separate counts, whether nine based on the false quarterly fee claims, or forty-six based on the false statements, I would not have regarded separate counts as appropriate.” Para 55.
Reference to the statutory provisions in the present case show that a pension benefit or allowance is achieved by making a claim, see for instance S. 16 of the 1999 Act. The secretary must, in accordance with the social security law, determine a claim by either granting or rejecting it, S. 36 of the 1999 Act. For newstart allowance the secretary must determine it be granted if satisfied that the claimant is qualified or is expected to be qualified and the allowance would be payable, S. 37 (2) of the 1999 Act. A social security payment is to be paid in arrears and by instalments relating to such periods (not exceeding 14 days) as the secretary determines, S. 43 (1) of the 1999 Act. Each of the periods determined by the secretary under subsection (1) is an instalment period in relation to social security periodic payment, S. 43(6) 1999 Act. Sections 67 and 68 of the 1999 Act respectively provide for a person who has made a claim for a social security payment which has been granted and a person to whom a social security payment is being paid to be given a notice by the secretary requiring them to inform the secretary if a specified event or change of circumstances occurs or is likely to occur and to give the department a statement about a matter that might affect the payment to the person of the social security payment.
The 1991 Act was in similar terms. A claim was required, which was determined by the secretary. The secretary was required to grant it if satisfied that the person was qualified and it was payable. The Act provided benefit be paid by instalments with periods determined by the secretary and at times determined by the secretary. The secretary was empowered to give a notice requiring the recipient to inform the department if a specified event or change of circumstances occurred, was likely to occur, or to give a statement to the department about a matter that might affect the payment of the benefit to the person. The Act also provided that a determination that a persons claim for benefit was granted or was payable continued in effect until the benefit ceased to be payable either because of the recipient’s advice in compliance with a notice from the secretary that the benefit ceased to be payable or because the recipient failed to comply with the notice or because of the further determination that the benefit be cancelled or suspended.
The relevant legislation does not support the appellant’s submission. Once the claim for payment of the social security payment was determined in favour of the appellant it continued to be payable by periodic payments, here, determined by the secretary to be fortnightly. The secretary required the appellant on a fortnightly basis by means of the fortnightly forms to inform of the sort of matters set out above. So long as this was not informed, payment of the instalments according to the original determination, continued.
The charges were not bad for duplicity. There was no unfairness to the appellant. He was at all times aware of the way in which the prosecution intended to present its case and of the particulars which made up the prosecution case.
It is not shown the convictions were unsafe or unsatisfactory because of the way in which the offences were charged and the prosecution case presented. And on the evidence before the magistrate the magistrate was plainly entitled to convict.
The magistrate imposed one penalty for both offences. He ordered the appellant to perform two-hundred hours of unpaid community service and ordered reparation of the overpayment of the allowance which, based on the profit and loss statements, he determined in the sum of $7,775.23.
Given the evidence before the magistrate it is not shown that sentence is manifestly excessive. The amount of reparation sought was the amount the magistrate was satisfied the appellant was over paid during the period of the complaints. This was calculated from the amount the appellant was paid in newstart allowance and the amount of net profit from the business according to the profit and loss statements in evidence. By using that method it was claimed the appellant was overpaid $12,935.79. However the magistrate reduced that to the amount of reparation ordered because, having regard to the purchase date of the business and the start date in the first complaint, namely 9 May 1998, he felt unable to find whether the profit for that year was derived before or after 9 May, 1998. There is no reason to interfere with the sentence.
The appellant made assertions in his oral submissions about the system of accounting now accepted by the Australian Taxation Office in calculating net profit, which he said altered the amount of reparation actually due.
This was not before the magistrate. His order was based upon the evidence before him and is not challenged on that basis. There is no basis on this appeal to interfere with the order for reparation. If the appellant’s contentions are factually correct, he may consider what, if any, other avenues are open to him, including negotiation with the department.
The appeal is dismissed.
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