Lammon v Emery - [2010] QDC 123

[2010] QDC 123

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 406 of 2009

TROY ANTHONY LAMMON	Appellant
and
MAXINE ELIZABETH EMERY	Respondent

SOUTHPORT

..DATE 05/03/2010

ORDER

Justices Act 1886 s 222
Crimes Act 1914 (Cth) s 17A
Criminal Code (Cth) s 135.2

Appeal against sentence - original sentence not manifestly excessive - magistrate given an erroneous account of the facts which overstated the dimensions of the offending - Magistrate did not state why actual imprisonment was the only appropriate sentence - appeal allowed on 12 months' imprisonment order remains with an intensive correction order, rather than release after one month in custody

HIS HONOUR: This is an appeal under section 222 of the Justices Act 1886 by Mr Lammon, who complains that a Magistrate’s sentence imposed on the 4th of August 2009 for an offence of obtaining an advantage under section 135.2 of the Commonwealth Criminal Code was manifestly excessive.

It is difficult in my opinion to categorise the sentence in that way. It represents about half of what the Prosecutor had asked for. It was a six month sentence to be ameliorated by a release order after one month.

For a period of 44 and a-half fortnights, the appellant received benefits which he was not entitled to. He had commenced to receive them on the basis of a serious heart related medical opinion (of a specialist brought in by Centrelink) when after his treatment, medical treatment was that it might take up to two years for him to retrieve any ability to return to ordinary working life. Matters developed favourably in the medical area to the extent that the appellant was able to obtain employment which, whatever it was earlier, came to be full time employment as a groundsman at Bond University.

He was reminded periodically by communications from the Department of his obligation to inform the authorities of the favourable change in his working and financial circumstances but failed to do that.

In consequence, he continued to receive payments for the period mentioned when for some 33 and a-half periods he was entitled to only partial benefits and for the other 11 weeks he was entitled to none.

Before the Magistrate, the failure to inform the authorities was attributed to the appellant’s uncertainty as to whether the employment which he found would last. It was accepted, and I think had to be, that at some point the appellant became guilty of “fraud”. When data matching indicated there had been an offence, he accepted the situation and cooperated with the authorities, pleading guilty early.

He is a single man in his mid-thirties and cannot demonstrate any justification for his receipt of benefits which were no longer available under the law to persons in his situation. I agree with the Magistrate that the explanation has to be characterised as greed, at least from the time when it was tolerably clear the new employment would endure, as it has done.

Appeal bail was applied for and granted. At that stage,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lammon v Emery

Details

AGLC: Lammon v Emery [2010] QDC 123
Case: [2010] QDC 123
Decision Date: 05/03/2010

CaseChat Overview and Summary

The appeal in Lammon v Emery involved Troy Anthony Lammon, who challenged the sentence imposed by a Magistrate for an offence under section 135.2 of the Commonwealth Criminal Code, concerning the obtaining of an advantage by deception. Lammon argued that the six-month sentence, with a release order after one month, was manifestly excessive. The District Court, presided over by Justice Robin QC, examined whether the sentence was within an appropriate range and whether the Magistrate's reasoning was sound.

The legal issues before the court included whether the sentence was manifestly excessive, if the Magistrate had correctly applied the sentencing principles, and whether there were factual inaccuracies that influenced the sentence. The court considered that the sentence, which was about half of what the prosecutor requested, was not manifestly excessive. However, the court identified a factual error where the Magistrate was misinformed about the periods for which Lammon was entitled to benefits, which may have influenced the sentence.

Justice Robin QC determined that the Magistrate's failure to explicitly state why imprisonment was the only appropriate sentence, as required by section 17A of the Crimes Act 1914, constituted a significant error. Although this failure did not invalidate the sentence, it provided grounds for the appeal court to interfere. The court concluded that the sentencing discretion had miscarried due to this error and set aside the original sentence. In its place, the court imposed a sentence of 12 months' imprisonment, to be served with an intensive correction order, and ordered Lammon to report to the Burleigh Heads Community Corrections Office to commence the order.

The court's final orders included the maintenance of the 12 months imprisonment, the reparation order, and the costs of the court. The intensive correction order replaced the initial release order after one month, aiming to balance the need for punishment with the potential benefits of rehabilitation and community service.

Orders