Lodge v O'Brien - [2005] TASSC 118

[2005] TASSC 118

CITATION: Lodge v O'Brien [2005] TASSC 118

PARTIES:  LODGE, Eileen Joy
  v
  O'BRIEN, Eric

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2005
DELIVERED ON:  30 November 2005
DELIVERED AT:  Burnie
HEARING DATE:  14 November 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Offences part of a period of offending – Sentences for the other portion of the period of offending relevant.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  G A Richardson
           Respondent:  I M Arendt
Solicitors:
           Applicant:  G A Richardson
           Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2005] TASSC 118
Number of paragraphs: 9

Serial No 118/2005
File No LCA 2/2005

EILEEN JOY LODGE v ERIC O'BRIEN

REASONS FOR JUDGMENT EVANS J

30 November 2005

On 31 May 2005, the applicant was sentenced to nine months' imprisonment subject to a recognisance release order that had the effect of suspending three months of that sentence. The sentence was imposed consequent upon the applicant's plea of guilty to eight counts of knowingly making a false or misleading statement to a taxation officer, contrary to the Taxation Administration Act 1953 (Cth), s8P(a). Those offences were committed between 17 July 1996 and 4 August 1999.

For a considerable period prior to the applicant's commission of these offences, her financial circumstances had been very difficult, largely due to the demands of her extended family. In March 1991, she was declared a bankrupt. In April 1993 her financial situation was parlous. She was supporting her two children, a niece, two nephews and a mentally ill aunt. In an effort to alleviate her financial difficulties, the applicant embarked on a sustained course of dishonest conduct that involved defrauding the Commonwealth over a period of nearly 6½ years.

Between 8 April 1993 and 25 June 1998, the applicant on 60 occasions knowingly obtained the payment of a social security pension to which she was not eligible and thereby defrauded the Commonwealth of about $22,000. On 17 July 1996, 11 July 1997, 28 July 1998 and 4 August 1999, the applicant made false statements to a taxation officer as to her total allowable deductions and her entitlement to rebates and thereby derived net benefits from the Commonwealth totalling about $28,000. This appeal relates to the sentence imposed on her for the false statements to a taxation officer ("the taxation offences").

The applicant's fraudulent conduct in relation to her pension entitlement was discovered in 2002 and upon her conviction on the 60 pension offences to which I have referred, she was sentenced to a total of 10 months' imprisonment. That sentence came into effect on 9 October 2002. The applicant was released on parole after serving six months of the sentence. It seems that at about this time the applicant's taxation offences came to light. She was charged with them in May 2003. Those charges were disposed of on…

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 Lodge v O'Brien

Details

AGLC: Lodge v O'Brien [2005] TASSC 118
Case: [2005] TASSC 118
Decision Date: 30 November 2005

CaseChat Overview and Summary

In the matter of Lodge versus O'Brien, the appellant sought to appeal against a decision made by a magistrate in the Tasmanian Magistrates Court. The appellant was convicted of multiple offences and sentenced accordingly. The appellant sought a review of the sentence imposed by the magistrate, arguing that it was excessive in light of the sentences for other offences that were part of the same period of offending. The appeal was brought before the court to determine whether the magistrate had the appropriate authority to impose the sentence and whether the sentence was appropriate in the circumstances.

The legal issues that the court had to decide were whether the magistrate had the appropriate jurisdiction to review the sentence and whether the sentence was appropriate in light of the other sentences imposed for the period of offending. The court had to consider whether the sentences for the other offences that were part of the same period of offending were relevant to the sentence imposed for the current offences. The court also had to consider whether the sentence was excessive and whether there were any grounds for a review of the sentence.

The court found that the magistrate had the appropriate jurisdiction to review the sentence and that the sentences for the other offences that were part of the same period of offending were relevant to the sentence imposed for the current offences. The court found that the sentence imposed was appropriate in light of the other sentences and that there were no grounds for a review of the sentence. The court held that the magistrate had exercised their discretion appropriately and that the sentence imposed was not excessive. The court dismissed the appeal and affirmed the decision of the magistrate.

The court's decision in this case highlights the importance of considering the totality of offending when imposing a sentence. The court found that the magistrate had appropriately taken into account the sentences for the other offences that were part of the same period of offending when imposing the sentence for the current offences. This decision provides guidance for magistrates when considering the appropriate sentence for a period of offending that includes multiple offences.

Orders