Prettejohn v Commonwealth Director of Public Prosecutions No. Scgrg-98-1130 Judgment No. S6863

PRETTEJOHN v COMMONWEALTH DPP
[1998] SASC 6863

Magistrates Appeal

Perry J (Ex tempore)

The appellant appeals against the penalties imposed in the Magistrates Court sitting at Adelaide following his plea of guilty to some 17 counts alleging various offences against the laws of the Commonwealth of Australia. They were: opening accounts with a cash dealer under a false name, contrary to s24(1) of the Financial Transactions Reports Act 1988 (Cth); imposition upon the Commonwealth, contrary to s29B of the Crimes Act 1914 (Cth); and knowingly obtaining Social Security payments and otherwise misleading the Department of Social Security with respect to the obtaining of benefits under the Social Security Act 1991 (Cth).
The offences were committed over the period between 21 November 1997 and 13 February 1998.
In sentencing the appellant, the learned special magistrate thought it proper to distinguish between the Financial Transactions Reports Act offences on the one hand, and the Social Security and imposition offences on the other.
In the result, on the Financial Transactions Reports Act offences, the learned sentencing magistrate imposed one penalty, namely ten months imprisonment. In view of the time spent in custody, she reduced that to 8 and a half months from the date upon which she pronounced sentence, namely 18 June 1998.
As to the imposition and Social Security Act offences, she pronounced two concurrent penalties: on the imposition charges, 9 months imprisonment; and the same term of imprisonment on the Social Security Act charges.
Given that they were to be served concurrently but cumulatively on the Financial Transactions Reports Act sentences, the overall head sentence became 17 and a half months. The learned sentencing magistrate went on to order that the appellant serve 12 months imprisonment from the date of the sentence, that is from 18 June 1998, and that thereafter he be eligible for release on a bond in the sum of $11.00 to be of good behaviour for a period of five and a half months, that being the balance of the term of the head sentence.
The learned magistrate ordered reparation in the sum of $4820.80, which, I have been informed by Mr Fisher who appears for the Commonwealth DPP, is the amount by which the Commonwealth was out of pocket as a result of the offences.
The appellant was represented by counsel before the learned sentencing magistrate, but appeared on his own behalf in person to pursue the appeal.
In his notice of appeal, his principal complaints are that the sentence was excessive, and that the time previously served in custody had not properly been taken into account.
The appellant is aged 28 years, almost 29. He has a record of prior convictions dating back to 1989. The convictions include a number of dishonesty offences. The range of convictions include larceny; wilful damage; traffic offences; making a false statement in an application; possessing firearms and offensive weapons; using offensive language; and driving under disqualification.
The learned sentencing magistrate was given a statement summarising the facts. It appears that, in the space of three months, the appellant created three separate false identities with supporting documents which, in the main, had been forged with respect to each of those identities. Apparently, he was tempted to do so having regard to losses suffered by him in a taxi business which he was conducting. He endeavoured to claim a Newstart allowance, as it is called, in respect of each of those identities, and opened separate bank accounts in order to conceal the true position.
Eventually, Federal police officers searched the appellant's house and vehicle. In the course of doing so, they found a series of documents relating to each of the three identities which he had assumed. They subsequently conducted a record of interview with the appellant during the course of which he made full admissions, although he declined to answer questions directed towards eliciting who had been responsible for creating the forged documents.
The appellant has put before me a typed summary of the submissions which he offers in support of the appeal. It is clear, from the careful way in which that material has been presented, that the appellant has not suffered by reason of the fact that he represents himself. In some respects, he has gone outside of the matters that were before the learned magistrate, but, as he is now unrepresented, I will not take a strict view of that, but I will deal with the matter on the basis of the submissions as he has put them.
In his submissions, he emphasises that, as he saw it, his counsel in the court below did not make the circumstances of his offending clear enough. His business had collapsed, leaving him with a lot of debts, and no way of paying them. He was concerned also that his father had guaranteed some of the debts. Out of desperation, to use his words, he conceived a plan to apply for unemployment using false names. He put to me this morning that he did not intend, initially, to maintain payments in his true name, but fell into the temptation of allowing them to continue in parallel with the other payments which he received, as time went on.
He emphasises that he made full admissions to the police, answering all of their questions, and pleaded guilty.
One of the main points which he makes is that the magistrate did not give full credit for the period spent by him in custody before she sentenced him. In fact, it is clear from her sentencing remarks that she gave him the benefit of the doubt as to the period which he had served, as it turns out, from 30 April, when a sentence on a driving disqualified conviction was completed, and the time when she sentenced him on 18 June. She thought that it might have been that part of that period, at least, was referable to time spent in default of payment of fines. But she gave him the benefit of what she understood to be the full period.
In fact, it is a period, as the appellant made clear this morning, of close to seven weeks. She took six weeks into account, as the information which she had before her was not so precise as the information which I now have before me.
A point which the appellant makes with respect to that, to put it shortly, is that the failure to backdate the sentence, rather than to give credit for the amount spent in custody before 18 June, has had an effect on the appellant's pre-release program, and the possibility of his release into home detention at the expiration of six months.
I understand the point made by the appellant in that regard, but, in my opinion, it does not afford any basis upon which it would be proper to interfere with the sentence which was imposed upon him.
I have carefully considered all of the matters which he has put in support of the appeal. As I have said, he put his points clearly, and did so as well as might have been expected from legal counsel.
The maximum penalty under the Financial Transactions Reports Act offences was two years imprisonment. But, in a court of summary jurisdiction, the most which could have been imposed for each offence was 12 months on each count. There is the same maximum penalty with respect to imposition, and the Social Security Act offences attracted a maximum of 12 months in each instance.
The onus is on the appellant to demonstrate some error in the sentencing process which ought to be corrected on appeal by this court. In particular, it is for the appellant to satisfy this court that the overall sentence imposed upon him was manifestly excessive.
In my opinion, there is nothing that he has been able to point to which would justify interference by this court.
The offences were part of a deliberately conceived plan of fraud and deceit executed over a period of time. The authorities make it plan that systematic fraud on the public purse must be regarded seriously. The penalty must emphasise the need for general deterrence.
The suggestion that the penalty imposed was excessive must be rejected.
The appeal is dismissed.

[1998] SASC 6863

21 September 1998