Mitchell v Commonwealth Director of Public Prosecutions No. Scgrg-99-884 Judgment No. S434

[1999] SASC 434

MITCHELL v COMMONWEALTH DEPARTMENT OF PUBLIC PROSECUTIONS

[1999] SASC 434

Civil
Ex Tempore

1. LANDER J:       The appellant was charged and pleaded guilty to 13 counts of knowingly or recklessly making a false statement in connection with an application for a Youth Start allowance.  The conduct was over a period of about six months between April and October 1998.  In respect of some counts he failed to advise that he was in employment and on other counts he stated that he earnt less than in fact he had. 

2. He was convicted and one sentence of two months imprisonment was imposed.  No order was made for early release as a result thereof.  The effect of the order was that the appellant has to serve a period of two months imprisonment.  He was also ordered to pay $3188.37 in reparation. 

3. The learned Magistrate, in his reasons, had regard to two decisions of this court.  First, he discussed a decision of the Chief Justice in Dunstan v Department of Social Security (SASC, S5777, 7 August 1996, unreported).  In that case, the appellant was charged with 20 counts in relation to the same offence and a further three counts of knowingly obtaining a payment of an instalment which was only payable in part contrary to s.13.47(d) of the Social Security Act. 

4. The appellant in that case pleaded guilty and was sentenced to be imprisoned for four months.   The Chief Justice indicated that he could not say that the sentence of four months imprisonment was excessive, although he said that he accepted it was a heavy penalty.   He said that whilst he was reluctant to see the appellant go to gaol the case on appeal really amounted to whether a first offender with a good record who has pleaded guilty should not be imprisoned.  He said that that general proposition could not be sustained particularly in relation to those offences. 

5. The Chief Justice then had regard to a decision of mine in Fischer v Director of Public Prosecutions (1996) 65 SASR 194. In that case I said:

   “All of the cases suggest that it would only be in exceptional circumstances that a person convicted of a sustained offence including breaches of the social services legislation would escape a period of imprisonment.  It seems to me that a period of imprisonment must necessarily be imposed unless there is some special mitigating feature in the circumstances of the offences or peculiar to the offender which would make the imposition of immediate imprisonment not necessarily appropriate.”

6. The Chief Justice, having discussed those remarks, said that he was unable to find any special mitigating feature in the circumstances of the offences or the circumstances of the offender.

7. The learned Magistrate in this case said that the Chief Justice had confirmed in Dunstan v Department of Social Security that the sentence was not severe and that he had confirmed the sentence should not have been suspended.  I think that is a misunderstanding of the Chief Justice’s decision.  I think the Chief Justice believed, in Dunstan’s case, that the sentence of imprisonment of four months in the circumstances was a heavy penalty. 

8. However, the Chief Justice was not considering whether he would have suspended the sentence of imprisonment.  The matter before the Chief Justice was whether he could say that the Magistrate erred in failing to suspend the sentence of imprisonment or, to put it more particularly, failing to order the immediate release of the appellant.  The distinction is not unimportant. 

9. On appeal, a judge is only concerned with whether or not the sentence is within the exercise of the sentencing discretion.  The remarks of the judge in those circumstances must be understood as no more as confirming, if an appeal by an accused person is dismissed, that the sentence was within the sentencing discretion.  It is not to be understood that the judge in those circumstances, on appeal, is indicating, unless the judge says so, that the sentence is one that the judge would have imposed himself or herself.  I think in this case, the learned Magistrate has misunderstood the decision of the Chief Justice and misunderstood my decision in Fischer v Director of Public Prosecutions.  In Fischer v Director of Public Prosecutions I was attempting to say that ordinarily any person who involves himself or herself in sustained breaches of the Social Services legislation of the kind which this appellant has committed, can expect to be sentenced to imprisonment. 

10. I also meant to say, however, that whether such a sentence should be imposed or whether such a sentence should be subject to immediate release must depend upon the circumstances of the offences and any circumstances peculiar to the offender.  The decision ought not to be elevated any higher than that. 

11. In this case, the learned Magistrate was told by the prosecution that the appellant, in application forms each fortnight, either under declared his income from his employer, or falsely stated he was not employed at all.  He was, during the relevant period, employed on a casual basis and his weekly income varied. 

12. During the period of offending he earnt $7775 but only declared $1428 of that income.  The offending was discovered on 9 November 1998 by reference to a discrepancy in the employer verification report. 

13. The appellant was overpaid by $3188.  The learned Magistrate was told that there was an aggravating feature of the offending in that the appellant had a prior overpayment of $732 for failing to correctly declare his earnings from employment. 

14. Submissions were put on behalf of the appellant relating to his personal circumstances and the circumstances in which these offences were committed.  The appellant has no previous convictions and has, apart from these offences, led an unblemished life.  He left school at year 11 and has made every attempt to secure and retain employment since that time.  He is now aged 25.  He was in a de facto relationship shortly before the time of these offences but that de facto relationship broke down in 1997. 

15. A number of references were put to the Magistrate to confirm the appellant’s previous good character.  It was also put to the Magistrate that the appellant suffered from depression for which he had been treated since December 1998 by Dr Martin in Port Pirie.  I must say that matter does not seem to me to be very relevant unless explained because, as I have already noticed, these offences were detected in the month before he apparently became depressed. 

16. The appellant pleaded guilty at the first available opportunity and commenced repayment of the overpayment at the rate of $45 per fortnight.  As I put to Mr Algie in his submissions, there is nothing unremarkable about the appellant's circumstances.  They are, unfortunately, too often the circumstances one sees of offenders in relation to these offences. 

17. However, there was one matter which neither the appellant's solicitor (not Mr Algie), nor the respondent's advocate put to the learned Magistrate.  Prior to the appellant entering his plea, there had been discussion between the solicitor and the Director of Public Prosecutions in relation to his plea.  The DPP had agreed with the appellant's solicitor that he did not oppose a suspended sentence in this matter.  The DPP, in fact, advised its advocate of his position prior to this matter coming on before the Magistrate. 

18. Unfortunately, neither party advised the Magistrate of the DPP's attitude.  The Magistrate, therefore, sentenced without the benefit of knowing that the Director in this case was of the view that an application for immediate release should not be opposed.  Of course, that is not so much a relevant matter unless I can first determine that the exercise of the sentencing discretion has miscarried in this matter. 

19. I think, for the reasons I have already given, that it has.  I believe that the learned Magistrate was in error in his understanding of the remarks of the Chief Justice in Dunstan v Department of Social Security and, as a result, failed to have regard to an order for immediate release of this appellant.  It follows, therefore, if the sentencing discretion has miscarried, it falls to me to exercise that discretion. 

20. I believe that these offences warranted a sentence of imprisonment.  I believe that the sentence of imprisonment which was imposed by the learned Magistrate was appropriate.  The appellant's circumstances are, as I have said, similar to those of a lot of people who come before the court with the aggravating feature to which I have referred.  However, the attitude of the Director, in my opinion, cannot be overlooked.  It is not, of course, for the Director to determine the appropriate penalty to be imposed by the court.  That is for me.  But the Director, who is charged with the responsibility of prosecuting a number of people for these offences, has in this case expressed the opinion that he should not oppose an application for immediate release.  I am satisfied by that that the Director believes that the circumstances of this offence are such that it would not be inappropriate to make an order of that kind. 

21. In those circumstances, I intend to confirm the sentence of imprisonment which has been imposed upon the appellant but make an order that he be released immediately on his entering into a bond.