Kovacevic v Commonwealth Director of Public Prosecutions No. Scgrg-99-980 Judgment No. S421
[1999] SASC 421
•21 September 1999
KOVACEVIC V COMMONWEALTH DPP
[1999] SASC 421
Civil (Ex Tempore)
LANDER J The appellant was charged with 34 offences under the Social Security Act. In particular, he was charged with 17 counts of making a false statement and 17 counts of obtaining payment of a Social Security instalment payment. The offences were apparently committed over a period between November 1996 and June 1998.
The appellant was overpaid Social Security benefits by $7,065.92. He pleaded guilty to all charges and one sentence was imposed and he was sentenced to ten months imprisonment.
It was ordered he be subject to early release after serving three months, provided that he enter into a bond in the sum of $300 to be of good behaviour for three years.
The appellant has appealed against the imposition of that sentence upon the grounds:
1...... that the court erred in that it did not order the release of the appellant forthwith, instead of ordering his release after serving three months after the sentence of 10 months imprisonment, which was imposed in respect of all counts;
2.that the sentence imposed was manifestly excessive in all the circumstances.
The appellant completed his submissions through his counsel and included, in those submissions, the following:
“Whilst deterrence is an important feature of sentencing for this type of offending, a court must always consider the discretion as to whether a custodial sentence should be immediately served.
Whilst there is nothing less criminal about Social Security fraud compared with larceny or embezzlement, the courts must be careful to ensure that considerations of general deterrence do not elevate this offence to a degree where it is in fact more criminal.”
It was submitted that offences of this kind were committed by those who have the least resources and are the most disadvantaged.
In support of the two grounds of appeal it was put that there ought to be an order for immediate release for the following reasons:
1. that no fictitious names or accounts were used;
2. that the offending arose from need;
3. that the appellant himself caused the payments to cease;
4. the relative amount involved and the period of offending;
5. because the appellant had no significant prior criminal history;
6...... because the appellant was in full-time employment and had good prospects of rehabilitation.
During the appellant's submissions regard was had to the decision of the Full Court of this Court in R v Cameronand Simounds (1993) 171 LSJS 305 and a decision of mine in Fischer v DPP (1995) 65 SASR 194, and a more recent decision of the Chief Justice in Dunstan v Department of Social Security (SCSA, Doyle CJ, 7 August 1996, unreported). It was put that if the court was constraining itself, by its own statements, from considering the individual circumstances of an appellant, then that involved error. Indeed, it was put that the decision in R v Cameron and Simounds was wrongly decided because it involved a constraint on the exercise of the sentencing discretion. It was put that that decision overemphasised the need for general deterrence at the cost and expense of the individual offender.
During her submissions I asked Ms Davey if she wished me to refer the matter to the Full Court for its consideration, in particular the submission that Cameron's case was wrongly decided. She well understood, of course, I was bound to follow Cameron's case. She took instructions on that matter and, thereafter, applied to have me refer this matter to the Full Court for its further consideration.
Mr Christoforou, who appeared for the respondent, opposed my referring this matter to the Full Court. He said that the Full Court decision in Cameron's case was a recent one and there was no reason to doubt his correctness. In any event, he said it was correctly decided. Thirdly, he said, there was no confusion in the lower courts, or indeed in this Court, as to how the sentencing discretion should be exercised in cases of this kind. He therefore said this matter should remain with me and because I was bound by Cameron's case, I should dismiss the appeal.
The appeal to this Court comes pursuant to s 42 of the Magistrates Court Act 1991, and any appeal to the Supreme Court, arising from proceedings relating to minor indictable offence, the appeal goes to the Full Court, unless the appellant elects to have it heard by a single judge.
In this case no election was made because this offence is not a minor indictable offence. Ground 6 of the notice of appeal simply said that no election was made.
Section 42 of the Magistrates Court Act provides that I may refer the appeal to the Full Court.
There is nothing unremarkable about the circumstances of the appellant in this case. He is one of those persons who is often seen in relation to offences of this kind. He is, for all intents and purposes, a first offender. He is a young person who is in and out of work, and who becomes entitled and disentitled, from time to time, to Social Security benefits. His entitlement to Social Security benefits means that he is a person who could not survive without the assistance of those benefits.
In the case of this appellant, it is clear that he has obtained greater benefits than that to which he was entitled by reason of a failure to advise, from time to time, that he has been in employment.
If the decision in Cameron's case is to be re-examined, this is the type of case which ordinarily comes before the court and which would provide a useful vehicle for a reconsideration of that case. If, on the other hand, the Full Court does not believe that the circumstances are such that Cameron's case should be reconsidered, this case might provide a useful vehicle for the Full Court to explain the dictum of King CJ in Cameron's case, particularly as it might apply to persons of the class to which this appellant belongs.
It seems to me there are three ways of approaching the appellant's application: The first is to dismiss it and to hear the appeal; the second is, to dismiss the application, hear the appeal and consider whether or not I should grant leave to appeal; the third is, to grant the application.
There is nothing, I think, that I could usefully say on this appeal which has not been said on other occasions by other judges, in relation to these offences which would suggest that I should hear the appeal before considering the question of leave. The matter then really comes down to whether I should allow the application or dismiss it.
It seems to me it might be useful for the magistracy, and indeed for single judges of this Court, if the Full Court had the opportunity of considering the remarks of the former Chief Justice in Cameron's case and determining whether those remarks apply to cases of the kind to which this appeal is directed, and further determining whether ordinarily, in cases of this kind, the offender should be required to serve an immediate term of imprisonment.
I therefore believe it would be appropriate to accede to Ms Davey's request and I make an order referring this appeal to the Full Court for its consideration.
MR CHRISTOFOROU: When we appeared before you yesterday you indicated you were going to give us an indication as to whether you wish to refer the matter to the Full Court or not.
HIS HONOUR: Yes, I better deal with that first.
REASONS DELIVERED
HIS HONOUR: Having said that Ms Davey, I don't know quite what other orders I have to make. I haven't done this before.
MS DAVEY: I don't think your Honour has to make any further order. Can I assist the court - it is just a minor factual matter - your Honour referred to there being 18 counts of false statement and 16 counts; it is 17 of each.
HIS HONOUR: Is it?
MS DAVEY: Yes. It sometimes has been referred to as 18 and 16. I just recounted it.
HIS HONOUR: I make that change.
MS DAVEY: I don't seek in any way to argue what's fallen from your Honour, I don't know that I referred to Dunstan's case, I think it was referred to in the case before, I referred to Rainey, I don't know that I addressed any argument at all on Dunstan. I know your Honour heard about that case. I don't propose to argue the matter with your Honour now, but while I am aware of the decision, I'm not sure - I haven't checked the transcript, but I'm not -
HIS HONOUR: It maybe I was referred to it in the appeal before.
MS DAVEY: I know your Honour was, and I know your Honour did refer to it. I'd happily be corrected. I know my friend has re-read the transcript.
MR CHRISTOFOROU: I have re-read the transcript. I haven't obviously had very much to say during these proceedings, however I do wish to preserve the rights of the DPP in relation to the factual matters which your Honour has just outlined in those reasons. There are some matters which the DPP does not accept as being the true circumstances relating to this matter, and we, therefore, reserve the right to address the Full Court in full in relation to those matters.
HIS HONOUR: Certainly, Mr Christoforou. I don't think that anything I say will play any part now in the proceedings. I think this will be treated now as an appeal directly from the magistrate, which I will simply refer to the Full Court. I want to give some reasons in case the Full Court wanted to know why it was that the matter had been referred.
MR CHRISTOFOROU: As I said, I just wanted for the record to -
HIS HONOUR: Yes, you're quite entitled to do that.
MS DAVEY: My friend has made a comment to me, so your Honour understands, I made some submissions last week about what had been asserted on behalf of the prosecution and what had been put by Mr Othams in his affidavit, about what had been said about - that I understand my friend wants to put some other view - I don't know whether it's to argue with my account of what was asserted by the prosecution, or now asserts some other factual circumstance, but I make it plain what I was putting to the court is what I understood to have been asserted by the prosecution at first instance. I just make that plain so my friend can consider his position about that, because if he's asking for fresh evidence, then that's a different question. I just let my friend know that.
HIS HONOUR: The end result of all of that is I make an order referring the appellant's appeal to the Full Court for its consideration, that will require one or other party, I suppose, putting some appeal books together. I think probably Ms Davey at your request you're going to have your client -
MS DAVEY: Yes, my instructing solicitor was cross-examining me about this on the weekend and it is not the case the court prepares appeal books for the Full Court, the parties do, but I understand my instructing solicitor was following that matter up.
HIS HONOUR: It will be for your solicitor to put together the appeal books for a magistrate appeal book to the Full Court. They shan't have to be -
MS DAVEY: They're not very long.
HIS HONOUR: Large, but they still have to be done, I think, and I direct that your client do it.
MS DAVEY: We will have some discussion about all of this at the end of the day, I'm sure, but I think in many ways I think everyone will agree, it is in the nature of a test case that we're pursuing, and I think the current position, with respect to bail for my client, is that his bail condition is that he surrender 14 days after judgment is delivered in the matter, and I think that his existing bail arrangements -
HIS HONOUR: That will give him continuing bail until the Full Court have determined it.
MS DAVEY: We just apply to have the matter set down and we just apply to have the matter set down.
HIS HONOUR: I won't make any formal orders at the moment directing you to do anything. I would expect your solicitors would move reasonably quickly so the matter can be disposed of.
MS DAVEY: I have no doubt, as I indicated, counsel is already secured to argue the appeal.
HIS HONOUR: I need not make any other orders?
MS DAVEY: No.
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