Kovacevic v Mills

[2000] SASC 106

KOVACEVIC v MILLS
 [2000] SASC 106

Full Court:  Doyle CJ,  Mullighan, Williams, Bleby and Martin JJ

1. DOYLE CJ, MULLIGHAN, BLEBY AND MARTIN JJ. This is an appeal against a sentence imposed by a Magistrate.  The appeal was referred to the Full Court by a single judge, because the submissions for the appellant challenged the correctness of the decision of this Court in R v Cameron & Simounds (1993) 171 LSJS 305. That decision states the approach to be taken to the sentencing of offenders for offences such as those in question in this case. The Court sat as a court of five, to consider that challenge. The appellant submits as well that the sentence was imposed on an incorrect basis.

Facts

1. The appellant was charged with 34 offences under the Social Security Act 1991 (Cwth) (“the SSA”).

2. Seventeen counts alleged the knowing and reckless making of a false statement in connection with a claim for a social security payment under the SSA, contrary to s 1344(1)(a) and s 1350 of the SSA.  The other 17 counts alleged the knowing obtaining of a social security payment, which was not payable at all, contrary to s 1347(b) of the SSA.

3. The appellant pleaded guilty.

4. The prosecution alleged that on two counts the appellant under-declared his income from employment.  On the other counts of making a false statement the prosecution alleged that he failed to declare the receipt of income at all.  The prosecution also alleged, as to the counts of obtaining a payment, that the appellant received payments to which he was not entitled. 

5. The offences were disclosed by the matching of data held by the Australian Taxation Office.  The offending occurred between 29 October 1996 and 22 June 1998.  The overpayment involved was an amount of $7,065.92.

6. The appellant admitted the prosecution allegations.

7. The appellant’s solicitor put submissions in mitigation to the Magistrate.  The appellant lived in a country town, having returned there after undertaking some studies in Adelaide, and after working in Adelaide.  The appellant returned to the country town because he was unable to obtain permanent employment in Adelaide.  The appellant was living with his parents.  He could not get full-time employment in the country town.  He obtained some casual and part-time employment.  The work was intermittent.  There were delays in making payment to the appellant for work done, because the payments came from interstate.  The appellant offended, according to his solicitor, because he was frightened that he would not get further work, or that there would be a delay in the making of payments to him, and that if his benefits were cut off he would be left without income.  Once he started on this course, “things got out of hand and it became easier to continue to offend than to go and confess”.  After a time the appellant obtained permanent employment, and he then stopped claiming benefits.  The appellant apparently notified the relevant Government agency that he had obtained employment.  As we have already said, the offence…