Johnstone v Gibson
[1987] TASSC 73
•26 February 1987
B3/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Johnstone v Gibson [1987] TASSC 73; B3/1987
PARTIES: JOHNSTONE
v
GIBSON
FILE NO/S: LCA 25/1986
DELIVERED ON: 26 February 1987
JUDGMENT OF: Nettlefold J
Judgment Number: B3/1985
Number of paragraphs: 9
Serial No B3/1987
List "B"
File No LCA 25/1986
JOHNSTONE v GIBSON
REASONS FOR JUDGMENT NETTLEFOLD J
26 February 1985
Notice to review an order whereby the learned magistrate sentenced the applicant to imprisonment for seven days on the whole complaint.
The complaint contained three charges of presenting a document false in a particular in breach of s.138(1) (d) of the Social Security Act 1947 (Clth.), the particulars being as follows:–
“1. THAT on or about the 30th day of January 1985 at Devonport in Tasmania NORTON RIVER JOHNSTONE presented to the Director of Social Security a form dated 30 January 1985 entitled ’Application for Continuation of Unemployment Benefit‘ in which he falsely denied that he had engaged in paid employment for the period from 17 January 1985 to 30 January 1985 when he had in fact been employed during that period by a firm known as Lunson and Baker, of Devonport.
2. AND FURTHER THAT on or about the 13th day of February 1985 at Devonport in Tasmania NORTON RIVER JOHNSTONE presented to the Director of Social Security a form dated 13 February 1985 entitled ’Application for Continuation of Unemployment Benefit‘ in which he falsely denied that he had engaged in paid employment for the period from 31 January 1985 to 13 February 1985 when he had in fact been employed during that period by a firm known as Lunson and Baker, of Devonport.
3. AND FURTHER THAT on or about the 25th day of February 1985 at Devonport in Tasmania NORTON RIVER JOHNSTONE presented to the Director of Social Security a form dated 25 February 1985 entitled ’Application for Continuation of Unemployment Benefit‘ in which he falsely denied that he had engaged in paid employment for the period from 14 February 1985 to 27 February 1985 when he had in fact been employed during that period by a firm known as Lunson and Baker, of Devonport.”
The grounds contained in the notice to review as amended are:–
1. the penalty imposed was manifestly excessive in all the circumstances; and
2. the exercise of the sentencing discretion was vitiated by a failure to seek a probation report under the Probation of Offenders Act.
From the transcript it appears that the proceedings before the learned magistrate were as follows:–
The charges were read and the applicant, who was unrepresented, was told the courses which were open to him. The applicant pleaded guilty to the three charges.
The prosecutor explained the facts, the substance of which is in the particulars recited above. In addition he said that, after enquiries by the department, the applicant was interviewed on 13th June 1986 when he admitted completing, signing and lodging the forms and subsequently receiving the unemployment benefits. He admitted giving false answers to the questions concerning his employment and in explanation stated that he had done so because he was trying to get a few extra dollars. The applicant did not have any relevant prior conviction. The prosecutor sought an order for repayment of the full amount overpaid, $906.50.
The applicant was asked what he had to say. Then followed the following:–
“Defendant: Just that it’s all correct.
The Court: Well you just wanted some extra money.
Defendant: Well I‘d just come back from Queensland and had been unemployed for quite a while, financially I was right down to rock bottom.
The Court: What kind of employment did you have with Lunson and Baker.
Defendant: I had a part–time ... I’m a carpenter by trade and I had a part. time job with them for a few weeks.
The Court: Are you married or single.
Defendant: Married.
The Court: Do you have any dependents.
Defendant: I had two dependents at that time it started.
The Court: A wife and a child.
Defendant: Sorry, three – with my wife and 2 children.
The Court: And what do you do now.
Defendant: I‘m presently unemployed – I have been since Easter of this year.
The Court: What sort of commitments have you got from a financial point of view, are you renting premises or buying them or what.
Defendant: I’m purchasing.
The Court: Yes, and what sort of a committal do you have there.
Defendant: Approximately $40 per week.
The Court: How much unemployment are you getting.
Defendant: None.
The Court: You‘re getting none. What are you surviving on.
Defendant: My wife works.
The Court: What does she do.
Defendant: She works at Edgells at Ulverstone.
The Court: You’re 37 years old.
Defendant: That‘s correct Sir.
The Court: And not under notice before Mr. Doolan.
Mr. Doolan: There are priors Sir, but there’s none for dishonesty.
The Court: Nothing dishonest. Well as you well know this kind of activity is frowned upon by a great number of people, both in government and in society, you must have known what you were doing was quite seriously wrong and was a problem that confronted those responsible for administering the Social Security Service in that these deceitful acts are rather difficult to detect. It seems to me that it‘s most important to deter both you and others who may be of like mind from repeating this kind of dishonest activity, I think it calls for a gaol sentence, however I’m prepared to take into account the fact that you haven’t been in any trouble in respect to dishonesty on an earlier occasion and also the fact that you have a wife and two children, but as I understand that your wife is responsible for bringing in the family income I don‘t think any undue hardship will be visited upon your children if I do send you to gaol. I think really to teach you a lesson and at I say others of a like mind seven days imprisonment is the proper penalty for this, and that’s on the whole complaint. Now there‘s an order sought for restitution for $906.50. Do you agree that that’s due back to the government.
Defendant: Yes.
The Court: Mr. Doolan is there any arrangements made ... of course there‘s no ...
Mr. Doolan: Well there’s no ability to deduct from his unemployment benefits because he‘s not getting any.
The Court: What can you do about repaying this amount $906.50.
Defendant: I suppose I could make it up with monthly payments.
The Court: Yes, with what sum a month.
Defendant: I’d have to discuss it first.
The Court: Well in that case I‘ll have to adjourn it till you get an answer – you want to discuss it with your wife, no doubt do you.
Defendant: Yes Sir.
The Court: Well we can re–list it in 14 days time or thereabouts, when I’m here when that‘s likely to be.
C.C.: 21st October.
The Court: I’ll adjourn that aspect until the 21st of this month, and in the meantime you can discuss the matter and come back with an answer. Alright. Very good. Have a seat there.”
I uphold both grounds. With great respect, the learned magistrate should not have held on the material before him that a sentence of imprisonment was the only appropriate sentence. The applicant was a tradesman 37 years of age with no relevant prior conviction. He admitted the of fences when interviewed and pleaded guilty. The offences were committed at a time when he was in difficult financial circumstances and had substantial family responsibilities. The number of false statements involved was small, in fact three, the period of time involved is short and the amount of money is relatively small.
On those facts it was wrong to affirm that a sentence of imprisonment was required. On the long established sentencing practice of this Court this offender would not have suffered a sentence of imprisonment taking immediate effect, in the absence of unusual circumstances, for committing a fraud involving this amount on a bank, a business house or another government department. Nor, again, in the absence of unusual circumstances, would he be likely to suffer such a penalty for a first offence involving this amount the charge being burglary and stealing. This sentencing practice has powerful reasons supporting it. The ultimate aim of the criminal law is the prevention of crime. That aim is often best served by giving primacy to rehabilitation or a penalty which falls short of subjecting first offenders to the often corrupting influences of a common prison.
With respect, an erroneous tendency has developed of treating fraud on the Social Security as more serious than a similar fraud committed on the victims mentioned above. With respect I agree with the comments of Neasey J. on that point (Fisher v. Gibson, 4886, p.10). Whether the fraud is committed on the Social Security or the other victims in the end the loss falls on the general community. There is no valid distinction between a loss falling on the community through the mechanism of taxation and a loss falling on the general community through the operation of the pricing mechanism unless it be that the latter is more serious because in that case the poorer section of the community carries a greater share of the loss.
I do not overlook Laxton v. Justice (1985) 38 S.A.S.R. 376 and the considerations there stated at p.381. (See also Wanders v. Gibson, 2586, Cox J.). I accept that these offences are prevalent. But so are the other similar species of fraud mentioned above. I accept that the offences are difficult to detect and that is a consideration pointing to a more severe penalty than might otherwise be appropriate. But, often, threats to the social security system are not to be regarded as more serious than threats to the banking system, the retailing system or other aspects of the government system. A fraud committed on a small trader will often be more serious than a fraud on a government department. But generalisations must be carefully watched as they can mislead.
By what I have written I must not be taken as differing from the sentencing approach outlined by Neasey J. in Fisher v. Gibson (supra). With respect, I accept entirely what he said in that case.
The mitigating factors here were such as to make an immediate sentence of imprisonment a choice which clashed with sound sentencing practice. Those factors all appear in what is stated above.
In the circumstances, it is not necessary to go into detail in discussing the other ground. With respect, the learned magistrate did not have enough material. As the submissions in this court show, there was a substantial amount of information which should have been obtained about this unrepresented first offender before such a serious decision was made.
I shall hear counsel further and impose an appropriate non–custodial penalty.
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