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

1. 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.

1. 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.

1. 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 that the crimes of forgery and uttering were committed over a five month period, so the reference in the record to 1 January 2006 is erroneous, and in fairness to the applicant, should be ignored.  This application for a review will proceed upon the basis that the learned magistrate had no information with respect to when the forgery and uttering crimes were committed.  Although not irrelevant, these convictions were not prior convictions at the time the impugned sentence was ordered.

1. Counsel told the learned magistrate that the applicant was a married woman with three dependent children; two 15-year-old children and a grandchild.  Prior to her imprisonment on 25 July 2007, she was the carer for her husband, who is ill with hepatitis C and liver disease.  The learned magistrate was told that throughout the period of offending, the applicant was employed as an aged carer at a home for the aged. 

1. Mr Tucker, counsel for the applicant, said that no complaint was made about the sentence of three months' imprisonment, but submitted that the failure to order that it be served concurrently with the sentence that the applicant was then, and still is, serving, or alternatively, the failure to make an order for the applicant's immediate release on a recognisance order, resulted in a sentence that was manifestly excessive.

1. In Hrasky v Boyd (2000) 9 Tas R 144, I wrote fairly extensively about the principles involved in sentencing for what is commonly known as "social security fraud". In essence, I concluded:

·    when sentencing for Federal offences, regard should be had to principles expressed, and sentences ordered, in other jurisdictions, as well as in this State;

·    although an order of imprisonment was not the inevitable outcome in every case, general deterrence is an important factor in sentencing for "social security fraud".

1. I rely on, but do not stay to cite, all the authorities I referred to in Hrasky v Boyd.  For present purposes, it will suffice if I repeat the observations made by Hunt CJ at CL in R v Purdon, unreported, New South Wales Court of Criminal Appeal, 27 March 1997 at 5:

"The rationale stated for the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. Both types of fraud are widespread. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer. See Regina v David Fernanda Medina CCA, 28 May 1990, unreported at 6; Regina v Mears (1991) 53 A Crim R 141 at 145."

1. This Court has applied the principles expressed in Hrasky v Boyd a number of times.  See, for example, McAree v Barr [2006] TASSC 37; Nolan v Jarvis [2006] TASSC 64.

1. On the hearing before me, I asked Mr Tucker what he meant when he said, somewhat enigmatically, to the learned magistrate:

"The crux of the problem seems to be that pay weeks, her pay weeks with Southern Cross Homes were different to the lodgement weeks in relation to her Centrelink forms and it's excepted that the statement of facts by Mr Pedder [sic] that there were four fortnights when she did declare some income but under-declared on other occasions and hardly declared anything on the forms [sic]."

But he was unable to shed any light on his submission other than to say that the fact that the fortnightly pay cycle was different from the fortnightly benefit cycle made it "difficult" for the applicant to complete the forms correctly.  It may have been difficult, but, as the learned magistrate observed, the applicant was "receiving a reasonable income and you supplemented that by not declaring in some cases or very significantly under-declaring your earned income so that you were paid an amount in excess of $6000 over the period from September 2005 to April 2006 …".

1. The learned magistrate was obliged to take into account the fact that the applicant was in custody at the time he made the order to "ensure that [she] is not subject to a 'crushing sentence' not in keeping with [her] record and prospects", per Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 304.

1. However, the learned magistrate was correct to take the view that the criminal conduct in respect of which he had to impose sentence was quite separate from the criminal conduct in respect of which the applicant was serving a sentence of imprisonment.  It could not be said that the social security offences were part of a criminal transaction in respect of which sentence had already been passed.  Accordingly, there was clear justification for ordering a separate, cumulative, sentence.  See Bruce v R [1971] Tas SR 22 at 34 – 35; Amos v R (1985) 16 A Crim R 409. Further, the addition of three months to the sentence the applicant was, and still is, serving does not result in a crushing sentence, one disproportionate to the applicant's record and prospects. The order that the sentence of three months' imprisonment be served at the expiration of the sentence the applicant was then serving was appropriate to the circumstances of the offences and the circumstances of the offender. It was well within the proper exercise of the sentencing discretion.

1. The application for a review of the order of sentence is dismissed.