McAree v Barr - [2006] TASSC 37

[2006] TASSC 37

CITATION: McAree v Barr [2006] TASSC 37

PARTIES:  McAREE, Janet Louise
  v
  BARR, Cassandra

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 25/2006
DELIVERED ON:  26 May 2006
DELIVERED AT:  Hobart
HEARING DATE:  17 May 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Purpose of sentence – Deterrence – Social security fraud – General deterrence – Very significant – Relevance of hardship.

Crimes Act1914 (Cth), s16A(2)(p).
Hrasky v Boyd (2000) 9 Tas R 144; Boyle (1987) 34 A Crim R 202; R v Wirth (1976) 14 SASR 291, referred to.
Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
             Applicant:  J S Wilkinson
             Respondent:  I M Arendt
Solicitors:
             Applicant:  Wallace Wilkinson & Webster
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2006] TASSC 37
Number of paragraphs: 24

Serial No 24/2006
File No LCA 25/2006

JANET LOUISE McAREE v CASSANDRA BARR

REASONS FOR JUDGMENT EVANS J

26 May 2006

The applicant, Janet Louise McAree, appeals against the sentence imposed upon her following her plea of guilty to two charges of obtaining a financial advantage in breach of the Criminal Code Act 1995 (Cth), s135.2(1). The sentences were expressed to be cumulative sentences of imprisonment that were partially suspended on the condition that the applicant committed no offences of dishonesty within a period of 28 months and entered into a recognizance in the sum of $500 in respect of each sentence. Whilst suspended sentences of imprisonment are authorised by the Sentencing Act 1997 (Tas), the sentencing of the applicant was not governed by that Act, but the Crimes Act 1914 (Cth), Pt 1B. The latter Act does not authorise the suspension of a sentence of imprisonment, but provides for recognizance release orders that can achieve a similar outcome. As the terms in which the applicant was sentenced do not comply with the Crimes Act, the sentences will in any event require rectification. I will return to this after considering the appeal on the basis that the applicant's sentencing complied with that Act. Recasting the sentences imposed as an in globo sentence in language that is appropriate to the Crimes Act, the applicant would have been sentenced to ten months' imprisonment and an order made that she be released after serving three months of that sentence upon giving security by entering into a recognizance for $1,000 not to commit an offence involving dishonesty for a period of 28 months from the date of her release from prison.

The applicant's convictions arise from her failure to correctly report to Centrelink her income from casual employment from 15 September 2001 to 19 December 2003, a period of about two years three months. This resulted in the overpayment of benefits to her totalling $13,088.85. On 15 September 2001, the applicant commenced casual employment with A C Nielsen. During the initial three month period of that employment, she…

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.

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Details

AGLC: McAree v Barr [2006] TASSC 37
Case: [2006] TASSC 37
Decision Date: 26 May 2006

CaseChat Overview and Summary

The case of McAree v Barr involved an appeal against sentence by the defendant, who was convicted of offences related to social security fraud. The matter was brought before the court to consider whether the original sentencing was appropriate and whether the considerations applied by the sentencing judge were adequate. The court was tasked with determining the correct balance between the purposes of sentencing, including general deterrence and the relevance of any hardship caused by the sentence.

The legal issues central to this appeal revolved around the principles of sentencing and the extent to which the original sentence met the objectives of deterrence and punishment. Specifically, the court had to assess whether the sentence imposed was sufficiently severe to act as a deterrent against similar future offences, and whether the hardship caused to the defendant and their family was properly considered in the sentencing process. Additionally, the court examined whether the sentencing judge appropriately weighed the factors relevant to the defendant’s culpability and the impact of their actions.

In delivering the judgment, the court found that the original sentence did not sufficiently account for the need for general deterrence in cases of social security fraud. The gravity of the offence and the potential to deter others from engaging in similar conduct were not adequately reflected in the sentence. The court also highlighted that while hardship caused by the sentence is a relevant factor, it should not outweigh the need for effective deterrence. The court concluded that a harsher sentence was warranted to achieve the intended deterrent effect and ensure justice was served.

Consequently, the appeal was upheld, and the matter was remitted back to the sentencing court for reconsideration of the sentence in light of the court’s findings. The new sentencing process must ensure that the sentence imposed aligns with the principles of deterrence and the overarching purposes of sentencing, taking into account the severity of the offence and the impact on the community.

Orders