Pennington v McLean - [2008] TASSC 4

[2008] TASSC 4

CITATION: Pennington v McLean [2008] TASSC 4

PARTIES:  PENNINGTON, Steven John
  v
  McLEAN, Heather

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 826/2007
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.

Criminal Code 1995 (Cth), s135.2(1).
Hrasky v Boyd (2000) 9 Tas R 144; Owen v McClean [2008] TASSC 3, followed.
Aust Dig Criminal Law [827]

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Reparation and restitution by offender.

Criminal Code 1995 (Cth), s135.2(1).

Attorney-General v Saunders [2000] TASSC 22, applied.

Aust Dig Criminal Law [844]

REPRESENTATION:

Counsel:
             Applicant:  D G Gray
             Respondent:  I R Arendt
Solicitors:
             Applicant:  Zeeman Kable and Page
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2008] TASSC 4
Number of Paragraphs: 19

Serial No 4/2008
File No LCA 826/2007

STEVEN JOHN PENNINGTON v HEATHER McLEAN

REASONS FOR JUDGMENT UNDERWOOD CJ

15 February 2008

The applicant seeks a review of orders that he:

(1)be sentenced to 12 months' imprisonment; but
(2)upon entering into a recognisance release order he be released after serving 8 months of that sentence,

upon conviction for 73 counts of obtaining a financial advantage, contrary to the Criminal Code 1995 (Cth), s135.2(1).

This is a case of "social security fraud" with respect to the Newstart allowance. On 73 occasions between July 2001 and February 2005, the applicant failed to disclose income he had earned in the preceding fortnight and consequently received a total of $23,730.63 by way of Newstart allowance, knowing that he was not entitled to it. The grounds relied upon for a review of the orders of sentence are that:

· it was manifestly excessive; and
· the learned magistrate failed to take into account, or sufficiently take into account, the fact that the applicant "had repaid the debt by way of increasing his mortgage".

The applicant had been in receipt of some kind of benefit from July 1995, but in about March 1997, commenced casual employment as a crane driver. At first, the applicant reported his earnings to Centrelink. In about mid-2001, his employment became more regular, but between July 2001 and February 2005, the applicant did not disclose that income or even that he was working, to Centrelink. During this period, the applicant earned an average of $909 per fortnight, amounting to a total of $66,393.51 over the period of offending. In result, during this period the applicant received benefits totalling $23,730.63 to which he was not entitled. In 2005, the applicant became a fulltime employee and ceased to claim any benefit.

The applicant's crimes were only detected as a result of a "tip off" received by Centrelink. When interviewed by Centrelink about the offences, the applicant…

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 Pennington v McLean

Details

AGLC: Pennington v McLean [2008] TASSC 4
Case: [2008] TASSC 4
Decision Date: 15 February 2008

CaseChat Overview and Summary

Pennington and McLean were involved in a legal dispute that reached the court. Pennington, the appellant, contested the sentence imposed by McLean, the trial judge, following a conviction for a criminal offence. The nature of the appeal was focused on the sentence's appropriateness and the factors the trial judge considered in determining it.

The central legal issue was whether the trial judge had correctly exercised their discretion in imposing the sentence. Specifically, the court needed to determine if the judge had appropriately balanced the purposes of sentencing, including general deterrence, and whether the sentence was proportionate to the crime committed. The appellant argued that the sentence was excessive and did not adequately reflect the sentencing principles outlined in relevant statutes and case law.

The court examined the sentencing principles and the specific circumstances of the case. It found that the trial judge had considered the relevant factors, including the seriousness of the offence, the need for deterrence, and the personal circumstances of the offender. The court concluded that the sentence was within the range of reasonable options and did not find any error in the trial judge's exercise of discretion. Therefore, the appeal was dismissed, and the original sentence stood.

No further orders were made by the court beyond the dismissal of the appeal. The decision affirmed the trial judge's assessment of the appropriate sentence and the factors considered in reaching that decision.

Orders