Legg v Commonwealth Director of Public Prosecutions - [2009] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEGG v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 126
Judgment of The Honourable Justice Kelly
13 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appeal against sentence - appellant pleaded guilty to three charges of dishonestly obtaining a benefit from the Commonwealth - at the time of sentencing the appellant was serving a custodial sentence for previous unrelated offences - magistrate sentenced the appellant to six months imprisonment to commence immediately after the expiration of the non-parole period for the previous offending - whether the magistrate erred in failing to order that the sentence commence forthwith and be served concurrently with the pre-existing sentence.
Held: Magistrate did not err - offending was serious - sentenced imposed was appropriate - consecutive sententences are appropriate where there are two or more incursions into criminal conduct - appeal dismissed.
Criminal Code Act 1995 (Cth) s 135.1(1); Crimes Act 1914 (Cth) s 162A(2)(n), referred to.
Attorney General v Tichy (1982) 30 SASR 84, applied.
R v Spiero (1981) 26 SASR 577, distinguished.
Kovacevic v Mills (2000) 76 SASR 404; Telford v Severin (2007) 98 SASR 70, discussed.
Hunt v Director of Public Prosecutions [2009] SASC 116, considered.

LEGG v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 126
KELLY J

This is an appeal against a sentence imposed on 23 December 2008 in the Holden Hill Magistrates Court in respect of three charges of dishonestly obtaining a benefit from the Commonwealth under the provisions of Section 135.1(1) of the Criminal Code Act 1995 (Cth) (‘the Code’). The sentencing of the appellant was complicated by the fact that the appellant at the time of sentence was currently serving a sentence of eight years eleven months and fifteen days with a non-parole period of five years eleven months and fifteen days which had commenced on 15 December 2007. That sentence was imposed by a District Court judge on 19 December 2008 in respect of multiple drugs and firearms charges which were unrelated to the Commonwealth offending.
After pleading guilty to the three charges, the appellant was sentenced to a total of six months imprisonment commencing on 29 November 2013. The magistrate subsequently recalled the matter on 2 January 2009 and amended the date of commencement of the six month term of imprisonment to commence on 26 November 2013 to ensure that the appellant’s sentences ran cumulatively in light of the projected release date on parole of the District Court matters which was 26 November 2013.
The sole ground of appeal is that the magistrate erred in failing to order that the sentence commence forthwith and be served concurrently with the sentence imposed by the District Court judge for the drugs and firearms offending. Although the appellant seeks an extension of time within which to appeal, an extension of time is not necessary as the notice of appeal was filed within twenty one days of the amended order of 2 January 2009.
The basis of the appellant’s complaint is that the commencement date of 26 November 2013 for the Commonwealth sentence effectively deprived the appellant of the opportunity to take part at an earlier date in home detention release on parole and other pre-release programs which might otherwise have been available to him. The appellant submitted that the learned sentencing magistrate failed to have proper regard to the rehabilitation of the appellant, a matter he was required to take into account under the provisions of Section 16A(2)(n) of the Crimes Act 1914 (Cth) and further, that he failed to have regard to the sentence already imposed on the appellant by the District Court judge in December 2007.
The appeal was adjourned on two occasions to enable the appellant to put forward material which he contended demonstrates the prejudice that he will suffer as result of the structuring of the sentence in this way. That material was tendered in the form of a letter from the Prisoner Assessment Unit to the appellant dated 22 April 2009 and a letter from the same unit to the Commonwealth Director dated 13 March 2009. Counsel for the respondent objected to the tendering of the letter dated 22 April 2009 on the basis that the contents are irrelevant to the issues which arise on this appeal. The contents of that letter reveal that the individual development plan for the appellant and security classification at the various institutions where he will be incarcerated for the term of his sentences has been delayed. Each stage of the program has been delayed by a period of six months by reason of the Commonwealth sentence.
In my view, the appellant’s argument is without merit. Not only did the magistrate take into account the current sentence being served by the appellant, he deliberately ordered the commencement of the sentence he imposed to coincide with the projected release date of the appellant in respect of the District Court sentence. The magistrate quite properly rejected the appellant’s submission that a sentence which was wholly concurrent with the District Court sentences was adequate to reflect the overall criminality of the appellant’s offending.
The offending was indeed serious. The appellant, who had absconded whilst on bail for other offending in South Australia, travelled to Queensland where he created a fictitious identity for the purpose of making dual claims on the social security system. That offending was deliberately carried out over a six month period and only appears to have come to an end when the appellant was ultimately extradited back to South Australia to face the criminal charges in the District Court in Adelaide. He has a long list of antecedents across South Australia, Queensland and New South Wales. Those convictions include numerous road traffic offences, breaches of bail, dishonesty related offences, and the drug and firearms matters which in themselves are very serious.
The maximum penalty for each of the offences contrary to s 135.1 of the Code is one year. He was therefore liable to a total term of imprisonment of three years. The overall sentence of six months to commence effectively at the end of the non-parole period for the State offences was in my view, appropriate, if not merciful. Moreover, it has long been accepted as a matter of sentencing policy and practice that where there are in truth two or more incursions into criminal conduct, consecutive sentences will generally be appropriate: Attorney General v Tichy (1982) 30 SASR 84; R v Spiero (1981) 26 SASR 577.
In Kovacevic v Mills (2000) 76 SASR 404 the Full Court affirmed that in cases where there is a deliberate and sustained fraud on the social security system, an immediate custodial sentence will usually be appropriate.
In my view the total effect of the combined State and Commonwealth sentences is not so oppressive or crushing as to reveal any error on the part of the magistrate. The fact that the appellant’s security classification at the various stages of his release program may be delayed by six months is not a matter which should be taken into account when determining whether there has been any error on the part of the magistrate. Matters relating to the classification and prioritising of pre-release programs for prisoners is a matter which is entirely within the discretion of the Chief Executive Officer of the Department for Correctional Services: Telford v Severin (2007) 98 SASR 70; Hunt v Director of Public Prosecutions [2009] SASC 116. It is true that the effect of the magistrate’s order is to make the Commonwealth sentence cumulative on the State sentence. That is an inevitable consequence which flows from the gravity of the offending and the need to impose a sentence of imprisonment which will be an effective deterrent both to this appellant and others.
For these reasons I dismiss this appeal.