Lewis v Duffin - [2012] TASSC 58

[2012] TASSC 58

COURT: SUPREME COURT OF TASMANIA

CITATION: Lewis v Duffin [2012] TASSC 58

PARTIES:  LEWIS, Sue-Ellen
  v
  DUFFIN, Paul

FILE NO/S:  649/2012
DELIVERED ON:  18 September 2012
DELIVERED AT:  Hobart
HEARING DATE:  14 September 2012
JUDGMENT OF:  Wood J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Social security fraud – Significance of general deterrence – Whether actual imprisonment manifestly excessive.

Crimes Act 1914 (Cth), s16A(2)(p).
Criminal Code Act 1995 (Cth), ss135.2(1) and 136.1(1).
Hrasky v Boyd (2000) 9 Tas R 144, McCulloch v Tasmania [2010] TASSC 21; R v Verdins (2007) 16 VR 269; Startup v Tasmania [2010] TASCCA 5, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  J C Kitto
             Respondent:  S Wilson
Solicitors:
             Applicant:  James C Kitto
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2012] TASSC 58
Number of paragraphs: 32

Serial No 58/2012
File No 649/2012

SUE-ELLEN LEWIS v PAUL DUFFIN

REASONS FOR JUDGMENT WOOD J

18 September 2012

This motion to review concerns a sentence imposed by Magistrate Pearce on 25 July 2012. The applicant, Ms Sue-Ellen Lewis, pleaded guilty to one count of obtaining a financial advantage contrary to s135.2(1) of the Criminal Code Act 1995 (Cth), and 21 counts of knowingly making a false statement in an application contrary to s136.1(1) of the Code.She was sentenced to eight months' imprisonment and ordered to be released after serving three months of that sentence upon her entering into a recognizance, without surety, on the condition that she is to be of good behaviour for two years. After serving three days of her sentence, the applicant was granted bail pending the hearing of this motion.

The details of the offending and the factual basis for the sentence are as follows.

During a period between 14 May 2007 and 3 July 2009 the applicant made false declarations to Centrelink and received an overpayment of Newstart Allowance of $21,221.49. She earned a total of $48,716.46 but only declared $6,220.30.

In applying for the allowance in the first place, the applicant was interviewed to assess her eligibility for Centrelink. She provided a bank statement to support her claim. During the interview she stated that she was not working. She lied about two deposits shown on the bank statement, stating they were a birthday gift to her son, when in fact they were income from her current employment. Thereafter she was required to report her gross earnings to Centrelink during a period involving 53 fortnights. She falsely declared that she was not receiving employment income on 29 occasions, and she under-declared her income on the other 24 occasions. In most instances the applicant provided false information in a form being an Application for Payment Form for Newstart Allowance, and on seven occasions the false information she provided was by telephone.

Count 1 related to the period between 14 May 2007 and 4 August 2008. During this…

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 Lewis v Duffin

Details

AGLC: Lewis v Duffin [2012] TASSC 58
Case: [2012] TASSC 58
Decision Date: 18 September 2012

CaseChat Overview and Summary

The case of Lewis v Duffin involved an appeal against sentence by the defendant, Lewis, who was convicted of social security fraud. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the sentence imposed on Lewis was manifestly excessive or inadequate. This determination involved assessing the gravity of the offence and the need for general deterrence, alongside the circumstances of the offender.

The court was required to consider whether the punishment Lewis received was so disproportionate to the offence as to shock the conscience of the court. The judge evaluated the nature and extent of Lewis's fraudulent activities, as well as the impact on the social security system. The court balanced the need for general deterrence against the specific circumstances of Lewis's offending. This included his background, remorse, and the impact of the sentence on his personal situation.

The court concluded that the sentence was not manifestly excessive. The judge emphasised the importance of deterrence in cases of social security fraud, noting the need to protect the integrity of the social security system. The court found that the sentence imposed reflected both the seriousness of the offence and the need to deter future offending, while also taking into account Lewis's personal circumstances. The appeal was therefore dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders