Lodge v O'Brien
[2005] TASSC 118
•30 November 2005
[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 31 May 2005 when, upon the applicant's plea of guilty, she received the sentence that is the subject of this appeal.
Her sole ground of appeal is that the sentence is manifestly excessive. I say at once that I do not consider that the period of the sentence, nine months' imprisonment, is manifestly excessive. Besides her conviction for the pension offences referred to, her prior convictions include a conviction for attempting to obtain goods by false pretences, a conviction for perverting the course of justice, and a conviction for obtaining goods by a false pretence. In these circumstances, I have no hesitation in concluding that the imposition of a sentence of nine months' imprisonment for her taxation offences was well within range. The matter that has exercised my mind in relation to the sentence is whether, in the circumstances, the learned sentencing magistrate erred in failing to suspend all of the sentence, that is, make the whole of the sentence the subject of a recognisance release order.
The taxation offences were committed on four separate days during the last three years of the period of about 6½ years during which the applicant defrauded the Commonwealth of a total of about $50,000. As already mentioned, in relation to the 60 offences committed by the applicant during the period of her offending, she was sentenced in 2002 to a total of 10 months' imprisonment, that is, four months' imprisonment on one complaint and six months' imprisonment cumulative on another complaint. The applicant was 43 years of age at that time. The sentencing magistrate who dealt with her on that occasion had before him a pre-sentence report dated 12 April 2002 which made most poignant reading. In the course of dismissing the applicant's appeal against that sentence, Lodge v Hrasky & Anor [2002] TASSC 83, I said of her initial sentence of four months' imprisonment:
"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 (that portion of) her sentence."
More generally, in dismissing her appeal against the total sentence imposed on her, I referred to the emphasis that Australian courts place on general deterrence when imposing a sentence for offences such as the applicant's.
During the period of a little in excess of two years between the applicant's release from prison in respect of that sentence, and her receipt of the sentence that is the subject of this appeal, there have been a number of changes in her circumstances. These changes were addressed in a pre-sentence report dated 12 April 2005 which was provided to the learned sentencing magistrate, together with the pre-sentence report dated 12 April 2002 which had been before the court on the occasion when she was sentenced in 2002. The most recent pre-sentence report indicated that the applicant's experience of incarceration following the 2002 sentence had been most salutary, that her financial circumstances had improved, her health had deteriorated, and she was a low risk of re-offending. The applicant had pleaded guilty to the taxation offences and was entitled to claim in aid, remorse as a mitigatory factor. When sentencing the applicant to nine months' imprisonment subject to a recognisance release order as to three months of the sentence, the learned sentencing magistrate referred to the requirements of general deterrence. He did not however expressly advert to the taxation offences as being one aspect of the total period of the applicant's offending or comment on the fact that as to the other aspect of her offending during this period, the pension offences, she had already served a period of actual imprisonment. When the sentences imposed on the applicant for the full period of her dishonest conduct are combined, they total 19 months' imprisonment, subject to her early release in respect of three months of the sentence pursuant to a recognisance release order. In my respectful view this demonstrates that the sentence in question was manifestly excessive insofar as the full period of nine months was not made the subject of a recognisance release order. From a practical point of view, the needs of deterrence were served by the initial sentence of 10 months' immediately effective imprisonment and in the light of the applicant's changed circumstances, it was not necessary to return her to prison.
The appeal is allowed. I will make orders which have the effect of confirming the sentence of nine months' imprisonment, but wholly suspending that sentence.
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