Potts v BONNICI - [2009] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POTTS v BONNICI
[2009] SASC 199
Judgment of The Honourable Justice Nyland
8 July 2009
SOCIAL WELFARE - OFFENCES - FALSE STATEMENTS AND FRAUD
Appellant failed to inform Centrelink of income from employment over a three-year period – appellant in an abusive relationship during period of offending – appellant suffering from mental illness - whether Magistrate erred in not proceeding under s 20 BQ Crimes Act – whether Magistrate erred in declining to exercise his discretion to proceed without recording a conviction pursuant to s 19 B Crimes Act 1914 Cth.
Held: appeal allowed – insufficient regard to appellant’s mental health and exceptional and unusual personal circumstances surrounding commission of offences – convictions and sentence imposed by Magistrate set aside but appellant to be subject to recognisance release order for a period of 18 months.
Criminal Code (1995) Cth s 135.2(1); Crimes Act (1914) Cth ss 19B, 4K, 20 BQ, 20(1)(B), 16A(1), referred to.
Boonstoppel v Hamidi [2005] SASC 248; Kovacevic v Mills (2000) 76 SASR 404, applied.

POTTS v BONNICI
[2009] SASC 199
Magistrates Appeal

NYLAND J: The appellant was charged with nine counts of obtaining financial advantage from a Commonwealth entity, contrary to s 135.2(1) of the Criminal Code (Cth). The offences were committed over a period of approximately three years, ie from about 13 February 2004 to 23 February 2007. During that period the appellant was in receipt of a Disability Support Pension from Centrelink but at the same time was employed as a teacher, initially on a temporary basis as a relieving teacher and as from 25 January 2006 as a full-time teacher. The appellant failed in her obligation to inform Centrelink of her employment and her income therefrom. It appears that over the relevant period the appellant’s gross income was about $181,872.92, none of which was declared to Centrelink. As a result, the appellant received Disability Support Pension payments to which she was not entitled amounting to the sum of $36,720.07. That sum was however repaid to Centrelink on 22 November 2007.
On 29 July 2008 the appellant appeared before a Stipendiary Magistrate in the Adelaide Magistrates Court with respect to the charges. Before entering a plea, an application was made for the matter to be dealt with pursuant to s 20BQ Crimes Act 1914 (Cth) (Crimes Act). In making that application, Ms McCrohan, who appeared for the appellant relied on reports from Dr Raeside and Dr Gill, both of whom are psychiatrists, a letter from Dr Maruszcxyk, who is also a psychiatrist, and a report from Mr Balfour, a psychologist. Those reports document in some detail the breakdown of the appellant’s mental health as a result of an abusive relationship she had with a man called Daryl Lunny over a number of years. Having considered those reports, the Magistrate indicated that he was satisfied that at the relevant time the appellant was suffering from a mental illness within the meaning of s 20BQ

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 Potts v BONNICI

Details

AGLC: Potts v BONNICI [2009] SASC 199
Case: [2009] SASC 199
Decision Date: 8 July 2009

CaseChat Overview and Summary

In the case of Potts v Bonicci, the appellant was convicted of making false statements to Centrelink, resulting in the receipt of unentitled benefits over a period of three years. The appellant had not disclosed her employment income to Centrelink during this period and was in an abusive relationship, which she claimed influenced her actions. The appellant also suffered from mental health issues, which were considered in the context of her offending. The central issues for the court were whether the Magistrate erred in not proceeding under section 20 BQ of the Crimes Act and whether he was incorrect in declining to exercise his discretion to proceed without recording a conviction under section 19B of the same Act.

The court examined whether the Magistrate adequately considered the appellant's mental health and the unique circumstances surrounding the commission of the offences. The Magistrate concluded that general deterrence was paramount and thus convictions were necessary. However, the court found that the Magistrate had not given sufficient weight to the appellant's mental health issues and the exceptional circumstances of her situation. The court considered that while the offences were serious and deliberate, the appellant's mental illness and the undue pressure from her abusive partner were significant mitigating factors. The court concluded that these factors warranted a more merciful approach, and that the imposition of a sentence without recording a conviction would be more appropriate.

The appeal was allowed, and the convictions and sentence imposed by the Magistrate were set aside. The court ordered that the appellant be discharged without a conviction, on the condition that she enter into a recognisance of $1,000 to be of good behaviour for a period of 18 months. This decision recognises the mitigating factors in the appellant's case and aims to avoid further exacerbating her mental health issues by preventing her from being barred from teaching. The court's ruling underscores the importance of considering the full context of an offender's circumstances, particularly when mental health and exceptional personal circumstances are involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The learned Magistrate had regard to all of these matters in considering the appropriate penalty but concluded that the issue of general deterrence outweighed the circumstances personal to the appellant. In his opinion, that required convictions to be recorded to satisfy the obligations imposed upon him under s 16A(1) Crimes Act. He referred to the fact that this was deliberate and sustained offending although he bore in mind that it was attributable to domestic pressures of a kind that few people could withstand. He reminded himself that a sentence of imprisonment was an option of last resort to be imposed only after all other sentencing options had been eliminated, but he considered a sentence of imprisonment was appropriate. He took into account the personal situation of the appellant, however, by making a recognisance release order, which operated forthwith. The medical evidence In considering these matters it is necessary to have regard to the detailed information contained in the various reports. It appeared that the appellant first met Lunny in about 1999, at which time she was in stable employment. By the end of 2001 however their relationship had deteriorated to the extent that she was unable to work. She spent about two years in unstable circumstances and was frequently obliged to take shelter in a women’s refuge. Mr Balfour said in his report dated 21 December 2007 that she continued to live in fear of Lunny. Although he did not support the legal defence of duress, he nevertheless considered that she was subjected to considerable duress from Lunny who threatened her with violence not to terminate her benefits. He described her offending behaviour as having occurred “in response to a unique combination of situational factors”. He went on to say that the only reason she had offended was because she was:…entrapped in a parasitic relationship with Mr Lunny, who stalks her. She does not know how to rid herself of his presence in her life because she fears him. I believe that once the pernicious influence of Mr Lunny is removed from her life, she will be able to return to a normal lifestyle and cease offending. Mr Balfour made it clear that the appellant did not offend out of personal avarice but under duress from Lunny and said she did not use the money she misappropriated to go on an extravagant spending spree nor to lead an opulent lifestyle. Dr Raeside considered that the appellant was suffering from a major depressive disorder, which appeared to be chronic, which he related to the trauma of the physical and emotional abuse, stalking behaviour and other involvement by Lunny, which had left her with a sense of helplessness and despair. As I have mentioned, Dr Raeside supported the appellant being dealt with under s 20 BQ, as he considered her depression and anxiety were significant factors influencing her offending behaviour. He thought she would benefit from treatment with anti-depressant medication, psychological therapy and practical assistance in order to extract herself from Lunny’s attention. He indicated that:…even without incarceration she is at significant risk of worsening her depression with a conviction that will prevent her from teaching.

Decision

Reasons for decision

Nevertheless the court in Kovacevic v Mills made it clear that they did not consider that deterrence must take priority over all other considerations. The court said[3]: In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.[3] (2000) 76 SASR 404 at [43].Conclusion There is considerable force in the matters put by Ms Barnes to support the sentence imposed by the learned Magistrate. This was a serious course of offending which took place over a lengthy period of time. Nevertheless, there were some unusual and quite unique features relating to it. Although the medical evidence did not support a legal defence of duress, it is clear that the appellant was subjected to considerable emotional pressure from Lunny which resulted in the commission and continuation of the offending behaviour. The learned Magistrate was understandably concerned about the gravity of the offending and was anxious to impose a sentence which would act as a deterrent. In so doing however, he fell into error by paying insufficient regard to the appellant’s mental health and the quite exceptional and unusual circumstances surrounding these offences which permitted him to take a merciful approach to the imposition of sentence. The appellant had a mental illness when she committed these offences. The medical reports clearly link her offending behaviour to the pressure and abusive treatment she was receiving from Lunny. The evidence supports a finding that the appellant is a person who is not likely to offend again. She has made full restitution. She clearly has an excellent reputation as a teacher of under-privileged children. It would be regrettable if the recording of a conviction for these offences, in the circumstances in which they occurred, brought an end to her ability to perform that task and thereby contributed further to her mental health difficulties. In my opinion, the mental health problems of the appellant and the extenuating circumstances in which this offending occurred are such that it is expedient to release the appellant on probation without proceeding to conviction. The appeal is therefore allowed. The convictions and sentence imposed by the learned Magistrate are set aside. Pursuant to s 19B(1)(d) the appellant will be discharged without proceeding to conviction upon entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of 18 months.

Ratio Decidendi

Legal Principle Established

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