KETOGLOU v Police

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KETOGLOU v POLICE

[2008] SASC 243

Judgment of The Honourable Justice White

5 September 2008

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appellant sentenced to 12 months’ imprisonment, to be released after serving 4 months on entering into a recognizance, for four offences against s 135.2(1) of the Criminal Code (Cth) (the federal sentence) – two previous suspended sentence bonds imposed for offences against South Australian laws revoked and appellant ordered to serve the sentences of imprisonment imposed for those offences (the state offences) - magistrate structured the commencement of each sentence so as to provide partial concurrency - whether the federal sentence was manifestly excessive – whether the federal sentence should have been suspended - whether the magistrate erred in revoking the suspended sentence bonds – whether the magistrate erred in failing to find special circumstances existed to suspend or reduce the terms of imprisonment imposed for the state offences - whether the magistrate should have ordered all three sentences to be served concurrently - whether a breach of a bond operates by itself to terminate the bond – whether an application to enforce a bond operates to terminate the bond.

Held: appeal dismissed - the magistrate did not err when sentencing the appellant - a bond is not terminated by a breach of the bond or by an application for its enforcement - a bond may be terminated only by its expiration, by its own terms or by an order of the court.

Criminal Code (Cth) s 135.2; Crimes Act 1914 (Cth) s 4K, s 20; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 38, s 57, s 58; Offenders Probation Act 1913 (SA) s 9, referred to.
Fischer v Chambers (1972) 4 SASR 105; Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480; R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; Marshall v Police [1999] SASC 379; R v Dorning (1981) 27 SASR 481; Kovacevic v Mills (2000) 76 SASR 404, applied.

KETOGLOU v POLICE
[2008] SASC 243

Magistrates Appeal

1. WHITE J: This is an appeal against three sentencing orders made by a magistrate.  One aspect of the appeal was inaptly described as an appeal against conviction.

2. The appellant pleaded guilty to four offences of obtaining a financial advantage from Centrelink knowing that she was not eligible to receive that financial advantage, contrary to s 135.2(1) of the Criminal Code (Cth) (“the federal offences”). Those offences were committed on 20 February 2006, between 6 March 2006 and 26 June 2006, on 7 August 2006 and on 18 September 2006. In four separate applications for payment of the Newstart allowance, the appellant did not tell Centrelink of the income, or at least the whole of the income, which she had earned. As a result, the appellant obtained $4,379.33 in benefits to which she was not entitled.

3. After…