Lutter v Hubbard

[2000] WASCA 248

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 a plea in mitigation, concluded that the appropriate sentence for the four offences was a total sentence of 12 months imprisonment without a recognisance release order. She achieved this by imposing sentences of 12 months imprisonment on each count to be served concurrently.

(Page 4)

7 The grounds of appeal assert that the sentence imposed by the learned Magistrate was manifestly excessive. There are particulars given. The first is the applicant's lack of record. The applicant does have a significant record in relation to driving offences, but it would appear there is only one previous offence which might be regarded as a dishonesty offence, that of being unlawfully on premises.

8 The second ground is that the applicant received the maximum penalty for a first-time offender. I do not think that is correct. The maximum penalty to which he was exposed for these offences was 4 years and it would have been open to her Worship to accumulate some of those at least, having regard to the length of time over which the offences were committed, although she did not do so, because of the totality principle.

9 The third particular is that the crown did not press for imprisonment. That is not, of itself, and never can be, a ground of appeal against a sentence. The Court must exercise its discretion following submissions and it is not obliged or required to follow the suggestion of the crown, although naturally a sentencing officer will give significant weight to submissions made by the prosecuting authorities, especially where they do not call for an extreme sentence.

10 The fourth is the applicant's plea of guilty. The learned Stipendiary Magistrate did take it into account. The question is whether she took it sufficiently into account along with the mix of other factors. The fifth is the probable effect that the sentence will have on the applicant's dependants. In the affidavit filed before me it does appear that the applicant has a wife and children who depend on him. What he says is:

"I am concerned that without my support through my income that my children will suffer while I am in prison. Not only do I need to be working to support my children, but also to continue paying back the money that is the subject of these charges to Social Security."

11 It appears that he still has a job to go to. The effect on the applicant's children is, by the Crimes Act s 16, a relevant circumstance. I am not sure, but will assume, counsel made appropriate submissions to her Worship about that. It may be that in the mix of matters her Worship failed to give that factor and the plea of guilty sufficient weight as to the second ground of appeal.
(Page 5)

12 In the circumstances I am not satisfied that the sentence imposed by the learned Stipendiary Magistrate, a total sentence of 12 months for four counts of social security fraud is manifestly excessive.

Should a recognisance release order have been made?

13 The second ground upon which leave is sought is that the learned Magistrate erred by not making a release order for the applicant to be released forthwith pursuant to s 21B of the Crimes Act, in particular having regard to the matters set out above.

14 The fact that a Magistrate decides that a sentence of imprisonment is appropriate does not conclude the consideration of the sentencing options because the Crimes Act does allow for a recognisance release order to be made either forthwith or at some period in advance of the date of sentence but before the end of the sentence. It is a particular option and her Worship did consider it.

15 I have had the benefit of argument and I have reached the firm conclusion that her Worship did err in the particular circumstances of this case in failing to make a recognisance release order that the applicant be released forthwith. In short, my reasons for reaching that conclusion are these. The applicant had no significant record for like offences. He did plead guilty. Albeit he may not have pleaded guilty at the earliest opportunity in respect of the charges, he did plead guilty and the effect on his dependants and his personal circumstances were such that I consider in this particular case it was appropriate to order there be a recognisance release order and he be released forthwith.

16 He has work to go to and is repaying the money. One should not regard repayment of the money as in any sense a mitigating circumstance because it is simply reparation of that which he has unjustly obtained. However, the fact that his family will be put into financial disorder by his continuing imprisonment, together with the mitigating effect of his plea, and the overall amount of money involved, though while significant, is not such as to require the sentence of immediate imprisonment to be served in full.

17 For those reasons, shortly expressed, I consider that the appeal is made out. With the cooperation of the crown, who appeared today ready to, and did in fact, argue the matter, I am in a position to give leave to appeal and to allow the appeal. The applicant has been in custody for some 3 weeks or so and so the order I would make to give effect to my

(Page 6)

reasons is that the sentence of 12 months' imprisonment on each charge ordered to be served concurrently is confirmed but that the applicant be released forthwith upon giving security of $1000 with a similar surety that he will be of good behaviour for a period of 12 months and that he will continue to make restitution as previously arranged.