Owen v McLean - [2008] TASSC 3

[2008] TASSC 3

CITATION: Owen v McLean [2008] TASSC 3

PARTIES:  OWEN, Melissa Kathleen (aka RUSSELL)
  v
  McLEAN, Heather

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR S/806/2007
DELIVERED ON:  15 February 2008
DELIVERED AT:  Hobart
HEARING DATES:  12 February 2008
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Purpose of sentence – Deterrence – Uniformity in sentences for Federal offences – Social security fraud – General deterrence very significant.

Social Security (Administration) Act 1999 (Cth), ss212(1) and 217.
Hrasky v Boyd (2000) 9 Tas R 144, followed.
Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
           Applicant:  G Tucker
           Respondent:  I R Arendt
Solicitors:
           Applicant:  Grant Tucker
           Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2008] TASSC 3
Number of Paragraphs: 12

Serial No 3/2008
File No LDR S/806/2007

MELISSA KATHLEEN OWEN (aka RUSSELL) v HEATHER McLEAN

REASONS FOR JUDGMENT UNDERWOOD CJ

15 February 2008

The applicant seeks a review of an order made in a court of petty sessions on 17 October 2007 that she be sentenced to a term of three months' imprisonment to commence at the expiration of the term of imprisonment the applicant was then serving.

The order was made following the applicant's pleas of guilty to, and convictions on, 16 counts of making a false statement in connection with a claim, contrary to the Social Security (Administration) Act 1999 (Cth), ss212(1) and 217. The particulars of the matters of complaint allege that on 16 separate occasions between 8 September 2005 and 6 April 2006, the applicant stated in an application for the payment of a Newstart allowance, either that she had not worked during a specified period, or that during a specified period she had earned a stated amount of income, and those statements were false or misleading. The learned magistrate was told that the false or misleading statements resulted in the applicant receiving a total of $6,027.53 to which she was not entitled. A few years previously the applicant had received an overpayment of a benefit and was required to repay the amount overpaid, so she was well aware of the need to make accurate statements in connection with an application for a benefit.

At the time of making the orders that are the subject matter of the application to review, the applicant was aged 34 years. She was then in prison, having been ordered to serve 18 months' imprisonment commencing on 25 July 2007 upon her pleas of guilty to 12 counts of forgery and 18 counts of uttering. A non-parole period of 9 months was ordered, and counsel told the learned magistrate that the applicant's earliest release date was 24 April 2008. According to the applicant's record, the forgery and uttering crimes were committed on 1 January 2006 and involved $48,647.85. I should say now that recourse to this Court's records that were not available to the learned magistrate, show…

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 Owen v McLean

Details

AGLC: Owen v McLean [2008] TASSC 3
Case: [2008] TASSC 3
Decision Date: 15 February 2008

CaseChat Overview and Summary

The matter of Owen v McLean came before the court, with the respondent appealing a sentence imposed by the primary judge. The appellant, McLean, had been convicted of multiple counts of social security fraud, which involved substantial sums of money. The court was tasked with examining the sentence's appropriateness and whether the primary judge had adequately considered the relevant sentencing principles.

The legal issues centred around whether the primary judge had appropriately applied the principles of sentencing, particularly in relation to the purposes of sentencing, including deterrence and uniformity in sentencing for federal offences. The appellant argued that the sentence was excessive and that the primary judge had not sufficiently considered the principle of proportionality or the need for uniformity in sentencing for similar offences.

The court examined the principles of sentencing, focusing on the overarching purpose of general deterrence, which was deemed particularly significant in cases of social security fraud. The court held that the primary judge had appropriately exercised their discretion and had taken into account the relevant factors, including the appellant's culpability and the need for general deterrence. The sentence imposed was considered appropriate and proportionate to the nature and circumstances of the offences committed.

The appeal was dismissed, and the original sentence was upheld. The court found that the primary judge had correctly balanced the various sentencing considerations and had not erred in their assessment of the appropriate sentence for the appellant's offences.

Orders