Parente v the Commonwealth No. Scciv-02-653 - [2002] SASC 212

PARENTE v THE COMMONWEALTH
[2002] SASC 212
MAGISTRATES APPEAL

BLEBY J (ex tempore): The appellant pleaded guilty in the Magistrates Court of South Australia to sixteen offences with which she was charged, being offences against s 215(b) of the Social Security (Administration) Act 1999 (Cth). The Magistrate recorded a conviction on each count, but pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) he ordered that the appellant be released without passing sentence, upon her giving security by a recognizance in the sum of $500 to be of good behaviour for a period of eighteen months.
The appellant appeals only against the recording of the convictions. She claims that the Magistrate should have exercised his discretion under s 19B of the Crimes Act 1914 to discharge her without proceeding to conviction upon her giving security by recognizance in the amount and on the conditions which were in fact imposed.
The nature of the social security benefit which she obtained was the payment of an Austudy allowance. The sixteen offences occurred between 6 December 2000 and 18 July 2001. By her plea, the appellant admitted that on each of those sixteen occasions she knowingly obtained payment of the benefit which was not payable at all. On each occasion she was disentitled to the payment because of the receipt of workers compensation and income from her employment with the Flinders Medical Centre. In relation to the payments referred to in counts 7 – 16 (from 14 March 2001), she was further disentitled to payment because she was no longer a full-time student.
The total amount of payments obtained was $4,615. They were each paid into a bank account into her name. Although the payments were credited to her bank account, she did not use them. They merely accumulated in the account. After she had voluntarily informed Centrelink on 26 July 2001 that she was not entitled to the payments, she later repaid the full amount she had received in three instalments, the reason for the instalments being that she paid by her credit card, and the amount she could pay on each instalment was limited by the credit limit on her card. At all events, by the time of the hearing, and indeed, before the summons was issued, the full amount had been repaid. She was interviewed on 13 November 2001 and made full and frank admissions.
The offending, viewed objectively, was reasonably serious. It extended over a period in excess of seven and a half months. It involved an amount of $4,615. By her plea, the appellant admitted that she knew that she received each payment and that when she received it she was not entitled to it. There was an obligation on her to notify Centrelink of the receipt of workers compensation and income from her employment. The offences committed from 14 March 2001 were compounded by her knowing that she was not a full-time student.
On the other hand, she did not use the payments for her own…

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: [2002] SASC 212
Decision Date: 26 June 2002

CaseChat Overview and Summary

The appeal was brought by Parente against the Commonwealth concerning the recording of convictions by the Magistrates Court of South Australia for sixteen offences against the Social Security (Administration) Act 1999. The appellant pleaded guilty to obtaining an Austudy allowance to which she was not entitled, due to her receipt of workers' compensation and employment income. The total amount obtained was $4,615, which she repaid in full before the hearing. The appellant appealed solely against the recording of her convictions, arguing that the Magistrate should have discharged her without conviction under s 19B of the Crimes Act 1914. The court had to determine whether the Magistrate exercised his discretion appropriately in not discharging the appellant without conviction.

The court considered the appellant's good character, her antecedents, and the extenuating circumstances of her offences. The Magistrate acknowledged these factors but concluded that it was not appropriate to exercise the discretion under s 19B(1). The court found that the Magistrate's reasoning was flawed by placing undue emphasis on the need for deterrence and the prevalence of the offence, without adequately considering the appellant's voluntary admissions, lack of personal gain, and repayment of the overpaid amount. The court held that the Magistrate's discretion was misapplied, leading to an unjust outcome.

The Full Court allowed the appeal, set aside the convictions, and ordered that the respondent pay the appellant's costs of the appeal. The decision highlights the importance of considering all relevant factors, including rehabilitation, when exercising sentencing discretion under s 19B of the Crimes Act 1914.

Orders