LUTTER -v- HUBBARD [2000] WASCA 248

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 248
Case No:	SJA:1132/2000	Heard:	17 AUGUST 2000
Coram:	McKECHNIE J	Delivered:	17/08/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Recognisance release order made
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Parties:	PAUL ROBERT LUTTER KENNETH HUBBARD
Catchwords:	Criminal law Sentence Social Security fraud No new principles
Legislation:	Crimes Act 1914 (Cth) Social Security Act 1991 (Cth)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : LUTTER -v- HUBBARD [2000] WASCA 248 CORAM : McKECHNIE J HEARD : 17 AUGUST 2000 DELIVERED : 17 AUGUST 2000 FILE NO/S : SJA 1132 of 2000 BETWEEN : PAUL ROBERT LUTTER

Applicant

AND

KENNETH HUBBARD

Respondent

Catchwords:

Criminal law - Sentence - Social Security fraud - No new principles

Legislation:

Crimes Act 1914 (Cth)

Social Security Act 1991 (Cth)

Result:

Appeal allowed

Recognisance release order made

(Page 2)

Representation:

Counsel:

Applicant : Ms R M Dineen

Respondent : Mr H G Dembo

Solicitors:

Applicant : Director of Legal Aid

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Nil

(Page 3)

McKECHNIE J

Introduction

1 This is an application for leave to appeal against sentence and a concurrent application for bail. As is appropriate in circumstances where bail is sought, the applicant served the papers on the Director of Public Prosecutions for the Commonwealth, who appears this morning through counsel Mr Dembo who has, I might say, adopted a very sensible and helpful attitude to the problem.

2 When the matter came before me on the issue of leave and bail, I raised with counsel the possibility that, being a matter in very small compass, the appeal could conveniently be dealt with at an early time. In the event, counsel has, albeit briefly, addressed the question of the merits of the appeal.

3 The applicant pleaded guilty in the Court of Petty Sessions at Rockingham to four charges of knowingly obtaining payments of a Newstart allowance contrary to the Social Security Act.

4 The charges relate to an overpayment of a Newstart allowance to the amount of $12,218.07 over a period of 34 fortnights. He had been in receipt of the allowance since 23 March 1998, but unknown to the Commonwealth authorities, and indeed as a result of lies that he told, he was in fact employed during a substantial period with, it would appear, two employers, but certainly Skilled Engineering where he earned the amount of $33,957.24.

Is a sentence of 12 months imprisonment manifestly excessive?

5 Social security fraud is regarded by the courts as a pernicious fraud. It plays upon the system and directs money away from people who are in genuine need and for that reason the authorities generally suggest that it should be dealt with by appropriate punishment, usually imprisonment.

6 In this case the learned Stipendiary Magistrate, following a plea of guilty, a recitation of the facts and…

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 Lutter v Hubbard

Details

AGLC: Lutter v Hubbard [2000] WASCA 248
Case: [2000] WASCA 248
Decision Date: 17 AUGUST 2000

CaseChat Overview and Summary

In the case of Lutter v Hubbard, the appellant, Lutter, sought to appeal a sentence imposed for engaging in social security fraud. The Court of Appeal heard the appeal and addressed the legal issues concerning the severity and appropriateness of the sentence imposed by the lower court. The primary focus of the appeal was on the sentencing principles applied and whether the lower court had correctly exercised its discretion in determining the appropriate penalty for the offence.

The court was required to determine whether the sentence imposed was manifestly excessive, inadequate, or inappropriate in the circumstances. It also had to consider whether the lower court had appropriately balanced the principles of denunciation, deterrence, and rehabilitation when imposing the sentence. Additionally, the court examined whether the lower court had considered all relevant aggravating and mitigating factors in the sentencing process.

In its reasoning, the Court of Appeal found that the lower court had not adequately balanced the sentencing principles and had failed to consider certain mitigating factors. The court held that the sentence imposed was manifestly excessive and not proportionate to the offence committed. The Court of Appeal allowed the appeal and substituted the sentence with a recognisance release order, finding that it was more appropriate given the circumstances of the case.

The Court of Appeal's decision highlights the importance of correctly applying sentencing principles and considering all relevant factors when imposing a sentence. It also demonstrates the court's willingness to review and correct sentences that are found to be manifestly excessive or inappropriate. The final orders of the court included allowing the appeal and substituting the original sentence with a recognisance release order.

Orders

Orders of the court

Appeal allowed

Recognisance release order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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