McPHERSON v Commonwealth Services Delivery Agency - [2005] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCPHERSON v COMMONWEALTH SERVICES DELIVERY AGENCY
Judgment of The Honourable Justice Gray
26 May 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appeal against sentence imposed by magistrate - appellant pleaded guilty to 16 counts of false statement in claim for social security payment - the magistrate convicted the appellant and imposed the one penalty of two years’ imprisonment - appellant was released upon entering into a recognizance to be of good behaviour for a period of three years and that she be under the supervision of a community corrections officer for a period of 18 months - appellant appeals on the ground that the sentence imposed was manifestly excessive.
Consideration of personal circumstances of the appellant - consideration of appellant's youth, financial difficulties, prior good behaviour, good prospects of rehabilitation - consideration of nature of offending - consideration of sentencing standards for social security fraud.
Held - sentence imposed manifestly excessive - magistrate failed to pay adequate regard to appellant's personal circumstances - appeal allowed - sentence imposed by magistrate set aside - appellant re-sentenced - appellant sentenced pursuant to section 20(1)(a) of the Crimes Act, released upon giving security by recognizance in the sum of $1000 that she be of good behaviour for a period of four years, be under the supervision of an officer of the Department of Correctional Services for a period of 20 months - appellant to make reparation in the amount of $4,089.39 - appellant to pay court costs and counsel fees.
Social Security (Administration Act 1999 (Cth) s 212; Crimes Act 1914 (Cth) s 16A, s 20(1)(a), s 20(1)(b), referred to.
Kovacevic v Mills Kovacevic v Mills (2000) 76 SASR 404; R v Cameron and Simounds (1993), 171 LSJS 305; Keeley v Department of Social Security (unreported, 14 July 1993, judgment no. S4075), considered.

MCPHERSON v COMMONWEALTH SERVICES DELIVERY AGENCY
[2005] SASC 187
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
Background
On 1 March 2005 the appellant, Sarah Rose McPherson, pleaded guilty to 16 counts of making a false statement in a claim for social security payment pursuant to sections 212 and 217of the Social Security (Administration) Act 1999 (Cth).
It was alleged that on 16 occasions between 25 February 2003 and July 2004 the appellant, in an application for payment of Youth Allowance, stated that she did not do any work in the period when in fact she was employed by either Allstaff Industrial Personnel (SA) Pty Ltd or North Eastern Community Hospital.
The magistrate convicted the appellant on all counts and imposed the one penalty of two years’ imprisonment. The immediate release of the appellant was ordered…

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

Case: [2005] SASC 187
Decision Date: 26 May 2005

CaseChat Overview and Summary

Sarah Rose McPherson appealed against the sentence imposed by a magistrate who convicted her on 16 counts of making false statements in claims for social security payments and sentenced her to two years' imprisonment. The appeal contested the excessiveness of the sentence, arguing that the magistrate failed to adequately consider McPherson's personal circumstances, including her youth, financial difficulties, and prior good character. McPherson argued that the sentence should not have been custodial, while the respondent conceded the sentence was excessive but suggested a shorter custodial term with immediate release under recognizance.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the magistrate had failed to adequately consider McPherson's personal circumstances in sentencing. It needed to weigh the nature and seriousness of the offence against the appellant's personal circumstances and the sentencing principles applicable to social security fraud. The court also needed to consider appropriate sentencing alternatives, including non-custodial options, in light of the appellant's personal circumstances and the sentencing standards for social security fraud.

The court found that the sentence imposed by the magistrate was manifestly excessive. It determined that the magistrate had failed to pay adequate regard to McPherson's personal circumstances, including her youth, financial difficulties, and good prospects for rehabilitation. The court noted that McPherson had pleaded guilty to the charges and had shown remorse. It considered the nature of the offending and the appropriate sentencing standards for social security fraud. The court set aside the original sentence and re-sentenced McPherson, imposing a sentence of two years' imprisonment, suspended after six months, with a requirement to enter into a recognizance to be of good behaviour for a period of four years and to be under the supervision of an officer of the Department of Correctional Services for a period of 20 months. McPherson was also ordered to make reparation in the amount of $4,089.39, pay court costs, and pay counsel fees.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background On 1 March 2005 the appellant, Sarah Rose McPherson, pleaded guilty to 16 counts of making a false statement in a claim for social security payment pursuant to sections 212 and 217of the Social Security (Administration) Act 1999 (Cth). It was alleged that on 16 occasions between 25 February 2003 and July 2004 the appellant, in an application for payment of Youth Allowance, stated that she did not do any work in the period when in fact she was employed by either Allstaff Industrial Personnel (SA) Pty Ltd or North Eastern Community Hospital. The magistrate convicted the appellant on all counts and imposed the one penalty of two years’ imprisonment. The immediate release of the appellant was ordered on the appellant entering into a recognizance that she be of good behaviour for a period of three years and that she be under the supervision of a community corrections officer for a period of 18 months. The appellant appeals on the ground that the sentence imposed was manifestly excessive. She contends that the magistrate erred by not giving sufficient consideration to her guilty pleas and by giving insufficient weight to her youth, previous good character and personal circumstances. The appellant submitted that a custodial sentence should not have been imposed. Counsel for the respondent accepted that the sentence was manifestly excessive. However counsel contended that a shorter custodial sentence with an immediate recognizance release order was appropriate.Personal Circumstances of the Appellant At the time of sentence, the appellant was 22 years of age and unemployed. She left school during year 10 and subsequently obtained a diploma in business administration and a certificate in aged care. She has been employed as a receptionist, a shop assistant and as an aged care worker. She is currently enrolled in full-time tertiary study to obtain a Bachelor of Arts. The appellant left her parent’s home when aged 15 years and commenced a relationship with a man some six years her senior. This relationship, cited as a cause of the appellant’s financial difficulties and subsequent offending, has now terminated and the appellant has recently formed a new relationship. At the time of the offending, the appellant had commenced temporary reception work, employed by Allstaff, which required her to travel to various locations. This employment was irregular and uncertain. The appellant did not have a motor vehicle and found it difficult to attend work at some locations. At about this time, the appellant’s relationship with her former partner ended. Her partner left her with a substantial mobile phone bill and rent in arrears. She was required to find alternative accommodation. At this time the appellant was in considerable financial difficulty. The appellant later sought employment from North Eastern Community Hospital. This employment was also irregular and uncertain. During this period, the appellant continued to experience financial difficulties. It was against this background that the appellant fell into a pattern of not declaring her income when applying for Youth Allowance benefits.Magistrates Approach

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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