Lodge v Hrasky
[2002] TASSC 83
•9 October 2002
[2002] TASSC 83
CITATION: Lodge v Hrasky & Anor [2002] TASSC 83
PARTIES: LODGE, Eileen Joy
v
HRASKY, Peter Jan
LYNCH, Steven
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 8/2002
DELIVERED ON: 9 October 2002
DELIVERED AT: Burnie
HEARING DATE: 7, 8 October 2002
JUDGMENT OF: Evans J
Edited Edition of Reasons for Judgment delivered orally
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: G A Richardson
Respondent: I M Arendt
Solicitors:
Applicant: G A Richardson
Respondent: Commonwealth Director of Public Prosecutions
Judgment Number: [2002] TASSC 83
Number of paragraphs: 22
Serial No 83/2002
File No LCA 8/2002
EILEEN JOY LODGE v PETER JAN HRASKY & STEVEN LYNCH
REASONS FOR JUDGMENT EVANS J
(GIVEN ORALLY) 9 October 2002
The applicant appeals against her conviction on 31 charges of knowingly obtaining the payment of a social security pension for which she was not eligible in breach of the Social Security Act 1991 (Cth), s1347. The charges relate to 31 payments of a disability support pension to the applicant between 23 December 1996 and 25 June 1998.
At the outset of the applicant's trial, she, by her counsel, in substance admitted that during the relevant period: the 31 pension payments which are the subject of the charges were credited to the applicant's personal Trust Bank account; the applicant was in the main employed by and in receipt of income from G A and D R Moore; and the applicant was aware that the earnings she received would have adversely affected her entitlement to a pension.
The applicant's defence was that upon her gaining employment with G A and D R Moore, she cancelled her pension claim and thereafter the pension payments had been paid into her personal bank account without her knowledge. The core issue for the learned magistrate's determination was accordingly whether the applicant had knowingly obtained the pension payments.
The evidence called by the prosecution established the following matters:
· By letter dated 25 October 1996, Centrelink advised the applicant that it would resume paying her a disability support pension.
· By letter dated 29 October 1996, in response to an enquiry from the applicant, Centrelink provided her with confirmation that the rate of her pension was $351.80 per fortnight.
· Within a short time of the resumption of the payment of the pension, the applicant obtained employment with G A and D R Moore, they paid her a week's pay on 29 November 1996 and regular fortnightly payments began on 26 December 1996. Nine fortnightly payments of an after tax amount of about $300, which are the subject of the charges, were paid directly into the applicant's personal Trust Bank account between 23 December 1996 and 17 April 1997.
· By letter dated 23 April 1997, Centrelink advised the applicant that her pension would stop as from 17 April 1997 because the applicant had "started full time employment" and explained to her that if she stopped full time employment, she should get in touch and payments would start again. At about this time, the applicant, who normally resided at Scottsdale, was in Hobart having undergone a hysterectomy. During this period, her postal address was changed to that of her daughter's, who was residing in Hobart at 310a Churchill Avenue.
· On 17 June 1997, Centrelink wrote to the applicant at the above address advising that her pension payments would start again as from 29 May 1997, that is from the date of the last pay she had received from G A and D R Moore before she stopped receiving earnings as a consequence of her undergoing the hysterectomy. It is reasonable to infer that Centrelink resumed paying the pension to the applicant on her oral request, which request was confirmed in writing by a letter from her dated 23 June 1997. Centrelink have a record that on that date, a letter was received from the applicant requesting the restoration of her pension. That letter cannot be located. The Centrelink employee who made a record of receiving the letter gave evidence and it was not suggested to her that her record was not accurate.
· A further letter was forwarded by Centrelink to the applicant on 15 August 1997 advising her of an amount to be deducted from her pension because of prior overpayments that she had received.
· Following the resumption of the pension payments, after tax payments of about $310 per fortnight were paid directly to the applicant's bank account between 24 July 1997 and 25 June 1998.
· Copies of Trust Bank account statements were sent to customers at not less than six monthly intervals. It can be inferred from the statements put into evidence that statements of the applicant's Trust Bank account were posted to her on or about 12 April 1997, 13 October 1997, 14 April 1998 and 12 October 1998. In the statements, the credit entries in relation to each pension payment record it is a "DSS pension".
· Between 23 December 1996 and 25 June 1998, net pension payments totalling $11,420 were paid into the applicant's Trust Bank account. Throughout this period, a number of transactions were effected on that account. They include cash withdrawals other than by means of a customer card. These could only be made upon the presentation of a withdrawal slip signed by the applicant.
· Following the crediting of the applicant's Trust Bank account with the final pension payment of $310.40 on 25 June 1998, the account balance was $1,160.85 credit.
It is apparent from the matters referred to that shortly prior to the applicant obtaining employment with G A and D R Moore in November 1996, she checked the amount of her pension entitlement with Centrelink and was provided with written confirmation of the same. Thereafter pension payments were credited to her account fortnightly until 17 April 1997. Payments then ceased because of the applicant's full time employment. A little over a month after pension payments ceased, the applicant's receipt of wages from G A and D R Moore stopped and she thereupon instigated the resumption of pension payments. Thereafter pension payments were regularly credited to the applicant's bank account until 25 June 1998. The applicant resumed receiving wages from her employer on 24 July 1997, but did not notify Centrelink of this.
During the relevant period, pension payments totalling $11,420 were credited to the applicant's account and upwards of $10,000 of this total was applied to the benefit of whoever could operate the applicant's bank account.
The applicant gave evidence that in late 1996, she communicated with Centrelink by telephone or letter, probably the latter, and cancelled her entitlement to the pension. She said that at that time she made her bank account available to her son for his use and to that end provided him with the account card and the PIN number. She said that from that time on she passed the bank statements in relation to the account to her son and she did not make any withdrawals from the account for her own benefit. She acknowledged signing withdrawal slips against the account, but said she did this at her son's request when he "lost the card or whatever". She said she got no benefit from any money put into the account by Centrelink. Whilst she acknowledged receiving correspondence from Centrelink during the relevant period, she denied knowing that Centrelink was paying the pension to her bank account. Implicit in her denial is a denial that she read the correspondence sent to her by Centrelink or the bank statements sent to her by her bank.
The applicant's son, Benjamin Hardy, gave evidence confirming that the applicant had made her Trust Bank account available to him for his sole use during the relevant period. He explained that this was done to enable tenants to whom he was renting properties at Queenstown and Ringarooma to pay rental straight into the bank account. He identified, as having come from one of the tenants, fortnightly payments of $140 credited to the account and said that he used his mother's card and PIN number to withdraw funds from the account. He said that he had the card for the whole of the relevant period. He said that on a couple of occasions, for his purposes, he would arrange for his mother to sign withdrawal slips on the account. He acknowledged that the applicant could have personally withdrawn funds from the account at the Scottsdale branch of the bank by using withdrawal slips. He denied receiving the bank statements in relation to the account and denied knowing that Centrelink was making pension payments for his mother into the account.
After reserving his decision, the learned magistrate published reasons for concluding that the applicant knew that the pension payments were being paid into her bank account and convicted the applicant. In rejecting the applicant's evidence that she did not know that the payments were being paid into her account, the learned magistrate, in essence, said that the applicant had dissembled and lied.
The applicant contends that the learned magistrate erred in finding against her. Her counsel has raised a number of matters. The applicant's son, Mr Hardy, gave evidence that when the applicant was in hospital, he paid her rent out of the account and that he may have got her to sign some withdrawal slips in order that he could do so. In his reasons for decision, the learned magistrate said that he inferred that the applicant's son had so acted at the applicant's request. Counsel for the applicant submits that the learned magistrate erred in drawing that inference. I do not agree. The inference was plainly open and was a reasonable inference to draw in the circumstances.
The learned magistrate commented that there was an incongruity between the evidence that the applicant had applied for the pension and her evidence to the effect that she was unconcerned about whether she received a pension. On her evidence, she did not check her bank statements to see whether the pension was being paid, or otherwise enquire as to its payment, for example, by reading mail received from Centrelink. The learned magistrate in substance found that it was untrue that the applicant was unconcerned about obtaining a pension and he concluded that she had lied in this regard out of a consciousness of guilt. I reject the submission of counsel for the applicant that this finding was not open. On the evidence, there was good reason for concluding that the applicant was assiduous about obtaining a pension and that her reason for affecting indifference about receiving a pension was her wish to provide a false explanation for her failure to check documents provided to her which showed that a pension was being paid into her account.
The learned magistrate inferred that the applicant advised Centrelink of her change of address to Sandy Bay in order to receive correspondence at that address as to her pension entitlement. Counsel submits that there were other reasons for the applicant to have provided this advice to Centrelink and proffered, as an example, the possibility that she was concerned about receiving a group certificate from Centrelink. This may not be a good example as it assumes knowledge on the part of the applicant that she had been receiving pension payments. Nevertheless, there are other possible reasons for the applicant to advise Centrelink of her change of address. Throughout the relevant period, the applicant was a recipient of benefits other than the disability pension. Her bank statements record occasional payments of what is described as a DCHS heat allowance, which I assume came from Centrelink. Whilst there are possible explanations for the applicant to notify Centrelink of her change of address besides concern about her disability pension, in my view, as the learned magistrate decided, that concern is the likely explanation. At about the time of the notification of her change of address it can be inferred from Centrelink's records that there were about four communications between Centrelink and the applicant about the termination of her disability pension and its resumption.
I do not accept counsel for the applicant's criticism of the learned magistrate's observations about the applicant's evidence that she informed Centrelink that her pension should be cancelled. The learned magistrate's comments are legitimate and consistent with the evidence. I likewise reject counsel's criticisms of the learned magistrate's finding in relation to the applicant's evidence that the bank statements had been passed to her son. The learned magistrate properly rejected that evidence. It was improbable and was contradicted by the evidence of the applicant's son.
The learned magistrate concluded that the applicant did not notify Centrelink to cancel her pension in 1996, but that she did so at about the time the pension payments were stopped on 17 April 1997. Counsel for the applicant submits that these conclusions and the learned magistrate's consequential findings are not correct. I do not agree. They are consistent with the evidence and are plainly open. I also reject the submission that the learned magistrate did not explain why he concluded that the applicant knew that the pension was being paid into her account. The learned magistrate's reasons for doing so are more than adequately detailed in the four page decision which he published.
The appeal against conviction is dismissed.
Prior to the applicant being sentenced on the complaint containing the charges which are the subject of her appeal against conviction ("the second complaint"), the applicant was sentenced on her plea of guilty to 29 equatable charges on a complaint in relation to pension overpayments totalling $10,661.60 which she received between 8 April 1993 and 9 September 1993 and between 22 September 1994 and 13 July 1995 ("the first complaint").
The learned magistrate sentenced the applicant to four months' imprisonment on the first complaint and 6 months' imprisonment cumulative upon that sentence in respect of her conviction on the second complaint. The applicant appeals against each sentence on the ground that it is manifestly excessive.
When sentenced, the applicant was 43 years of age. Her record of prior convictions included: a conviction for attempting to obtain goods by false pretences for which she ultimately served a very short term of imprisonment in consequence of her breach of the term of the suspension of the sentence of imprisonment which was initially imposed; a conviction for perverting the course of justice; and, a conviction for obtaining goods by a false pretence. The offences covered by the first complaint extended over a period of 15 months and the applicant derived a benefit of $10,661.60 from these offences. In the course of committing these offences, the applicant knowingly provided the relevant authority with false statements as to whether she was working and her receipt of earnings. The learned magistrate had before him two presentence reports, the most up-to-date of which is most poignant. The applicant has had a most difficult life. She has raised her two children without financial support from their father. She also raised and supported a niece and two nephews and cared for other relatives. She suffers from considerable health problems.
In Hrasky v Boyd [2000] TASSC 39 at par20, Underwood J observed that for many years Australian courts have emphasised the importance of general deterrence when imposing a sentence for what is loosely referred to as social security fraud. His Honour also cited with favour a passage from the decision of the Full Court of Western Australia in R v Rossi and R v Bowman (1988) 4 WAR 463 at 467 where the court said:
"Reported cases in recent years demonstrate a developing trend towards imposing custodial sentences, even for first offences, in the absence of substantial mitigation circumstances."
In the applicant's case I am satisfied that the learned magistrate's imposition of a sentence of four months' imprisonment on the first complaint was well within the appropriate range of penalties for these offences. The issue of whether that sentence should have been suspended is more difficult. Had the applicant not had prior convictions for offences involving dishonesty and had she been in a position to claim in aid remorse and reform as mitigating factors, in my view it would have been wrong not to have suspended her sentence. She had pleaded guilty and had genuinely, but, mistakenly, believed that she had repaid the payments which were the subject of the first complaint. Whilst these matters would ordinarily be taken as a sign of remorse and reform, they could not properly be so construed in this case as contemporaneous with the applicant being charged with the first complaint offences, she embarked on the series of offences which are the subject of the second complaint and persisted with those offences over a period of 18 months. Save for refunding the payments which are the subject of the second complaint charges, the applicant has shown no remorse in relation to those offences. In these circumstances I am of the view that the learned magistrate's failure to suspend any portion of the applicant's sentence of imprisonment on the first complaint was not a manifest error and was an appropriate exercise of his sentencing discretion.
There is no error involved in the sentence of six months' imprisonment imposed on the applicant in respect of the second complaint. Her commission of those offences at a time when she was facing charges for similar offences demonstrates her contempt for the law which underpins the social security system. A cumulative sentence of six months' imprisonment was well within the range for an appropriate penalty.
The appeals are dismissed.
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