Paton v Low - [2011] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PATON v LOW
[2011] SASC 12
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Appeal against sentence - appellant pleaded guilty to six counts of obtaining financial advantage from a Commonwealth entity - sentenced to four months imprisonment - whether Magistrate erred in declining to immediately release appellant on recognisance - whether Magistrate gave insufficient weight to personal circumstances of offender - whether Magistrate erred in imposing a sentence which lacked parity with other sentences imposed on the same day - whether Magistrate placed too much reliance on appellant's previous convictions - no exceptional circumstances justifying a more merciful approach - previous conviction only one aspect relied upon by Magistrate - appeal dismissed.
Criminal Code Act 1995 (Cth) s 135.2(1); Crimes Act 1914 (Cth) ss 4B(2), 4K, referred to.
Luxton v Commonwealth Services Delivery Agency [2006] SASC 257, distinguished.
Kovacevic v Mills (2000) 76 SASR 404, discussed.
Keeley v Department of Social Security (Unreported Judgment, Supreme Court of South Australia, Mullighan J, 30 July 1993, Judgment No S4075), considered.

PATON v LOW
[2011] SASC 12
Magistrates Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on complaint with six counts of obtaining a financial advantage from a Commonwealth entity contrary to the provisions of s 135.2(1) Criminal Code 1995 (Cth). The maximum penalty for this offence is 12 months imprisonment and/or a fine of $6,600.[1] On 8 October 2010 the appellant appeared before a Stipendiary Magistrate in the Adelaide Magistrates Court and pleaded guilty to all charges. He was sentenced on 22 October 2010. Pursuant to the provisions of s 4K Crimes Act 1914 (Cth) the Magistrate imposed one penalty with respect to all offences, namely a sentence of imprisonment of five months which he discounted to four months by reason of the pleas of guilty. He declined to make an order for immediate release and directed that the sentence of four months imprisonment commence forthwith. In addition, he made an order for reparation in the sum of $5,328.90.
[1] Crimes Act 1914 (Cth), s 4B(2).
The appellant has appealed against that sentence on the following grounds:
(1)That the learned Magistrate erred in declining to exercise his discretion to release the appellant forthwith upon recognisance;
(2)That the learned Magistrate imposed a sentence which lacked parity with other sentences imposed on the same day; and
(3)That the learned Magistrate erred in placing too much reliance on the appellant’s previous convictions.
Circumstances of the offending
The circumstances of the offending are outlined in the summary of facts provided by the respondent to the learned Magistrate and are not in dispute. The charges represented a course of conduct over a total period of about seven months, during which time the appellant failed to declare any earnings from employment. As a result, he received payments of Newstart Allowance at a higher rate than that to which he was entitled. The appellant had been in receipt of a Newstart Allowance on an intermittent basis since 28 December 2003. Between 28 April 1998 and 27 December 2003 the appellant had been in receipt of a Youth Allowance on an intermittent basis. The Newstart Allowance is payable to a person of age 21 years and over and who is unemployed and actively seeking and willing to undertake work. Newstart Allowance is income tested. The appellant was required to lodge an Application for Payment form each fortnight in order to trigger payment of Newstart Allowance. Each form included the question: “Did you do any work in the preceding fortnight?” During the period giving rise to the present charges the appellant submitted 22 “Application for Payment” forms in which he stated that he was not working, when in fact he was. On 5 October 2007 the appellant had commenced employment with DJ & JK Kennett as a casual roof tiler/labourer. The appellant was employed on a continuous basis between 5 October 2007 and 12 June 2008 and between 4 December 2008 and 26 March 2009.
He worked up to 40 hours per week at this employment, but his hours varied. Employment ceased on 26 March 2009. During the period of the charges the appellant earned $13,849 but did not declare any of this income to Centrelink. As a result, an overpayment of $5,328.90 was incurred.
Prior convictions
In the course of submissions before the Magistrate, counsel for the Commonwealth DPP provided the Magistrate with a copy of the appellant’s antecedent report which inter alia disclosed prior convictions for dishonesty, namely:
·A conviction recorded in the Elizabeth Magistrates Court on 27 November 2006 for two offences of dishonestly taking property without the owner’s consent, committed on 24 September 2005, for which the appellant was fined a total sum of $400;
·A conviction recorded in the Holden Hill Magistrates Court on 14 January 2008 also for the offence of taking property without the owner’s consent. That offence was committed on 21 December 2006. For that offence the appellant was placed on a bond to be of good behaviour for a period of 12 months with conditions and supervision. The question of penalty was deferred for 12 months on condition that the appellant be under supervision and participate in counselling with respect to drug and alcohol abuse.
Three of the present offences were committed whilst the appellant was subject to the bond imposed on 14 January 2008. As a result, in addition to sentencing the appellant with respect to the present offences, it was incumbent upon the Magistrate to sentence the appellant with respect to the earlier matter. The Magistrate revoked the bond and in lieu thereof imposed a fine of $400 but indicated that it was open to the appellant to apply to the Registrar of the Court to substitute an order for community service if he did not have the means to pay the fine over a reasonable period of time.
Personal circumstances of appellant
At the hearing in the Magistrates Court the appellant was represented by Ms Smith of counsel. She did not dispute that a custodial sentence was appropriate for the Commonwealth offences, but submitted that there was good reason to suspend any such sentence of imprisonment – i.e. make an order for the immediate release of the appellant. According to the affidavit of Ms Smith sworn on 12 January 2011 she made the following submissions in mitigation of penalty:
1.The Appellant acknowledged the seriousness of the offending, recognising that he had defrauded the community.
2.The Appellant had demonstrated that recognition by his pleas of guilty.
3.The Appellant’s background was one of a turbulent childhood and adolescence.
4.He lived with an abusive mother until he was ten (10) years of age, at which time he went to live with his abusive and alcoholic father for a further three (3) years.
5.The Appellant was thereafter placed into foster care. That situation subsequently fell apart, too. He found himself on the streets. He fell into drug and alcohol abuse. He worked when he could, trying to improve his position, to make things work, to stay on top of life. However, his drug and alcohol issues worsened, and had a significant impact upon him and his life.
6.The offending occurred in the context of these significant drug and alcohol issues, coupled with mental health issues, namely depression.
7.The Appellant’s drug and alcohol issues continued until 2008, when he voluntarily submitted himself to – and completed – a rehabilitation program at the Woolshed Therapeutic Community. He has overcome his drug and alcohol dependency, is coping much better, and is, to use the vernacular, getting his life back on track. However, due to the drug and alcohol issues operating at the time of the offending, the Appellant does not have a very good recollection of the period.
8.To the reasonably prudent person, unaffected by drugs or alcohol and with good skills of comprehension, staying in command of life’s paperwork is something that is, for the most part, manageable.
9.However, at the time of the offending the Appellant was not, to use the vernacular, “in his right mind”. He, and his life, were in a spin. Further, the Appellant has difficulties with respect to comprehension, particularly of the written word. This is a matter about which he was – and is – anxious and embarrassed, which anxiety and embarrassment prevented him from seeking the assistance he ought to.
10.During the period of the intermittent offending, the Appellant was not working full time. Although he worked for the same employer, his hours were sporadic, and the availability of work was unpredictable.
11.In the event that the learned Magistrate was minded that a sentence of imprisonment was appropriate, it was respectfully submitted that good reasons existed to suspend the sentence – in order, in effect, to afford the Appellant with one final opportunity, one last chance, to demonstrate that he is serious about being a contributing member of the community.
12.The Appellant is a young man, twenty-seven (27) years of age. As he has matured he has realised that he cannot continue along this path.
13.The Appellant has stable Housing Trust accommodation and is in a stable relationship – a long-term friendship which has blossomed into a relationship (his partner being in the body of the Court by way of support). His partner has a nine (9) year old daughter from a previous relationship, with whom the Appellant has formed a close bond, and with respect to whom the Appellant has taken on certain responsibilities. He is now in a position where, upon realising that he is an important figure in the life of this young girl, he has accepted his responsibilities and is determined to be a good role model in her life. …
Kovacevic v Mills
In the course of his sentencing remarks the learned Magistrate referred to the decision of the Full Court in Kovacevic v Mills[2] and said:
There clearly is the need for a deterrent penalty for matters such as this. They are difficult to detect and easy to commit. The concept of deterrence is an important consideration but their Honours in that case do not relieve me of the obligation to look at your own offending and personal circumstances independent of the suggested sentencing principles in that case to arrive at a just and proper penalty.
[2] (2000) 76 SASR 404.
The Magistrate later mentioned the need to bear in mind the concept of rehabilitation but also referred to the appellant’s prior offending. He finally concluded there was a need to impose a penalty that would act as a personal deterrent to the appellant, as well as a general deterrence on ordinary principles.
Ms Smith also appeared as counsel for the appellant on the hearing of the appeal. She accepted Kovacevic v Mills as a leading South Australian authority with respect to the principles to be applied in sentencing for offences such as those committed by the appellant and acknowledged that in the ordinary course a sentence of imprisonment was likely to be imposed. However she relied on that decision to submit that there were matters arising out of the personal circumstances of the appellant which permitted a merciful approach to penalty.
In Kovacevic v Mills the Court said at [39] - [41]:
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.
In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first time offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213.
In some cases the length of the period during which the offending occurs, or the amount involved, or the devices used to effect the fraud, is likely to lead a court to conclude that a sentence of imprisonment actually to be served is required. As is always the case in sentencing, and as Cox J said in R v King, a sentencing standard is a general guide to those who have to sentence in the future, with certain tolerances built into it.
The Court also agreed with the following observations made by Mullighan J in Keeley v Department of Social Security:[3]
I do not think the Full Court in Cameron and Simounds v R, in saying that the deterrent purpose of punishment must be paramount, was laying down a principle of sentencing that in all cases of fraud against the welfare system mitigating features of the circumstances of the offence and the offender can never assume prominence. The Court was speaking of the type of serious fraudulent conduct which it there had to consider. In the more serious types of cases, the need to deter others who are minded to deliberately and systematically defraud the system must prevail over matters of mitigation. However, in less serious cases the need for deterrence will not be paramount.
[3] (Unreported, Supreme Court of South Australia, Mullighan J, 30 July 1993).
Ground 1 – Exercise of the discretion for immediate release
Ms Smith relied upon the comments in Kovacevic v Mills and Keeley, as to the need for a court to consider such matters as the prospect of rehabilitation of an offender to support her submission that this was a case which permitted the Court to take a more lenient approach to the sentence to be imposed. She submitted that in this case the Magistrate had fallen into error by giving insufficient weight to the personal circumstances of the appellant who had offended during a period of turbulence in his life but who had since embarked on programs which augured well for his future rehabilitation. She referred to the characterisation of the overpayment by the Magistrate as moderate and submitted that the conduct of the appellant could be considered to be at the lower end of the scale of offending of this type. Although the learned sentencing Magistrate had referred to the offending occurring over a period of 18 months, she submitted that it was necessary to bear in mind this was an intermittent course of offending and that for 11 of those 18 months the appellant had not been in breach of his obligations. Taking into account all of the circumstances, Ms Smith submitted there were sound prospects for rehabilitation which supported the exercise of discretion to make an order for the appellant’s immediate release.
Ground 2 – The parity argument
Ms Smith also submitted that the sentence imposed by the learned Magistrate lacked parity with other sentences which he imposed on other defendants for similar offending on the same day as the appellant. Those matters are set out in the affidavit of Elim Chan sworn on 23 December 2010 as follows:
a.   Anthony Kennedy v Sharon Louise Brammer – The defendant in this matter was charged on complaint with 28 counts of make ‘False statement in connection with claim’ contrary to sections 212 and 217 of the Social Security (Administration) Act 1999 (Cth). The defendant admitted to making 28 oral statements via Centrelink’s Interactive Voice Recording System over a period of 17 months in which she stated that she earned less income during the period to which the recording related than she had actually earned from her employment. As a result, the defendant incurred an overpayment of $5,933.64. The defendant had prior convictions for traffic-related matters; she had no prior convictions for dishonesty-related offending. The defendant was sentenced to one global penalty of three months imprisonment to be released forthwith on entering a recognisance of $500 to be of good behaviour for two years.
b.   Mandy McCarthy v Julie Focarelli – The defendant in this matter was charged on complaint with two rolled up counts of ‘Obtain financial advantage from a Commonwealth entity’ contrary to section 135.2(1) of the Criminal Code 1995 (Cth). The defendant admitted to failing to correctly declare her income from employment to Centrelink over a period of nine months. As a result, she incurred an overpayment of $4,627.80. The defendant had no prior criminal history. She was sentenced to one global penalty of four months imprisonment to be released forthwith upon entering into a recognisance of $500.00 to be of good behaviour for two years.
c.   Lisa Plachy v Susan Rigby – The defendant in this matter was charged on complaint with two rolled up counts of ‘Obtain financial advantage from a Commonwealth entity’ contrary to section 135.2(1) of the Criminal Code 1995 (Cth). The defendant admitted to under-declaring her income from her employment to Centrelink over a period of 20 months. As a result, the defendant incurred an overpayment of $7,597.24. The defendant had no prior criminal history. She was sentenced to one global penalty of eight months imprisonment to be released forthwith upon entering into a recognisance of $500 to be of good behaviour for three years.
Ms Smith acknowledged that this matter did not fall within the traditional realm of parity or disparity as it did not concern sentencing with respect to co-offenders. Nevertheless, she submitted that the Magistrate had erred in imposing a sentence which was out of step with the sentences referred to in para 13 hereof.
Consistency in sentencing of like offenders is an important matter and it can be seen from the summary set out in the affidavit of Elim Chan that the other matters dealt with by the Magistrate on the same day as the appellant had features which were similar to that of the appellant insofar as the amount of overpayment and period of offending was concerned. In each of those cases the Magistrate exercised his discretion to order the immediate release of the defendant. However none of the other cases appears to have concerned a defendant with a relevant criminal history. There was therefore a proper basis to differentiate between the sentence imposed on the appellant as opposed to the other defendants. Those other matters therefore provide limited assistance in resolving the issues which arise on this appeal.
Ground 3: Reliance on previous convictions

The appellant further complained that the Magistrate had erred by placing too much reliance on the appellant’s previous convictions in determining that there was a need for personal deterrence and thereby declining to exercise his discretion to order the immediate release of the appellant.
It appears that in the course of submissions there was some discussion between the Magistrate and counsel concerning the offence for which the bond had been imposed on 14 January 2008. It appeared that the offence committed on 21 December 2006 was that of the larceny of a packet of socks worth $14.94 from Big W at Modbury. There was no information available with respect to the earlier two offences for which fines had been imposed. The learned Magistrate in re-sentencing the appellant with respect to that offence described it as shoplifting-type of offending and referred to it as not a serious offence of its kind and that is demonstrated by the imposition of a fine with respect to it.
In support of her submission that the appellant was entitled to the benefit of some leniency, bearing in mind the minor nature of that earlier offending, counsel referred to the decision of Luxton v Commonwealth Services Delivery Agency.[4] In that case the defendant pleaded guilty to seven counts of making false statements in claims for social security payments and was sentenced to four months imprisonment but on appeal the sentence of imprisonment was suspended, notwithstanding that the appellant had prior convictions for dishonesty offences. In Luxton, however, there were some unusual features arising with respect to the personal circumstances of the appellant which permitted the Court to take a merciful approach to the exercise of discretion.
[4] [2006] SASC 257.
In sentencing the appellant in this case the Magistrate said:
I take into account all of the matters that were put to me in relation to fixing the head sentence. That is quite proper. Your new relationship was specifically emphasised in this context, which I learn now has only been of some six months, the child for whom you have an affection who is your partner’s child and no doubt the child finds that comforting given her age; and your guilty plea. It was put that I should give you one last chance. As I say ‘one last chance’ is not, strictly speaking, a sentencing principle but I understand what is meant by that. It seems to me, taking into account all that I have said, what remains perfectly plain at the end of this decision-making process is the need to impose a penalty that is going to be a personal deterrent to you. This offending is against the background of prior dishonest offending and offending that continued throughout the period of the good behaviour bond and even persisted after the period of what you described as your rehabilitation from drug and alcohol offending. I do not consider that there is any warrant on the matters before me to order immediate release. As a consequence, I order that you serve the period of imprisonment to commence forthwith of four months.
In this case the previous conviction of the appellant was not in the scheme of things particularly serious, but it is clear from the Magistrate’s remarks that the conviction was only one aspect of the matter which influenced him in emphasising the need for personal deterrence and thereby decline to exercise his discretion to order the immediate release of the appellant. In addition to his prior offending history, the appellant committed three of the present offences whilst being subject to the bond imposed on 14 January 2008, which required the appellant to be of good behaviour. In addition, the offending persisted for some months after the completion of the program which was relied upon by the appellant as evidence of his rehabilitation.
Conclusion
In this case, the learned Magistrate provided detailed remarks with respect to penalty. He appears to have had regard to all relevant matters. There does not appear to be anything arising out of the appellant’s personal circumstances which would bring him within the category of the ‘exceptional case’ referred to in Kovacevic v Mills which would permit a more merciful approach to the question of penalty. No error has been identified in the approach taken by the learned Magistrate. The appeal is therefore dismissed.