R v Barton

[2006] QCA 18

[2006] QCA 18

COURT OF APPEAL

McMURDO P
McPHERSON JA
MUIR J

CA No 326 of 2005

THE QUEEN

v.

MICHAEL PATRICK BARTON  Applicant

BRISBANE

DATE 09/02/2006

JUDGMENT

APPLICANT conducted his own case

MR S ALLEN (instructed by the Commonwealth Director of Public Prosecutions) for the respondent

McPHERSON JA: On 11 July 2005 the applicant, Michael Barton, was sentenced in the District Court, following his plea of guilty a week or so earlier, to two counts: one of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), and the other of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Commonwealth Criminal Code.

On each count, he was sentenced to concurrent terms of imprisonment of three years, to be released after serving 10 months upon his entering into a good behaviour recognizance in the sum of $2,000 for three years.  On 7 December 2005, he filed an application for an extension of time, within which to pursue an application for leave to appeal against sentence.  Count 1 related to the receipt in the assumed name of Michael Seaton of New Start Allowance, which he began receiving from 22 January 1997. 

While still receiving it, on 29 March 1999 he applied in the name Michael Barton for a Disability Support Pension, citing an injury to his right arm.  A medical assessment in July 1999 found him unfit for work for the ensuing two years.  As a result of these acts, he fraudulently obtained a total of some $66,454.89 by receiving dual benefits from 22 January 1997 to 6 May 2003, making a continuous period of four years and four months during which he received $66,454.89 more than he was entitled to do.

It is not clear what is said to be wrong with the decision, other than the complaint that it is "manifestly excessive".  We have, however, been referred by counsel for the Commonwealth to decisions in the District Court at Beenleigh in Prosser (unreported, 1999), at Bowen in Mouncey (unreported, 1999), and in this Court in R v Hassarati [2005] QCA 102 and R v Carter [2005] QCA 402. Respectively, they show sentences imposed ranging from two and a half years with a non-parole period of 15 months, three and a half years with a period of 18 months, three and a half years with a period of 15 months, and two and a half years with a non-parole period of 10 months.

One or more of these decisions was referred to in R v Hurst; ex p Cth DPP [2005] QCA 25, in which, I understand, the President said that a prison sentence of nine to 12 months was within the range for offences of this kind. The applicant, on the other hand, cited one or more sentences in the District Court in which either larger amounts of money were taken or lesser sentences were imposed.

Much depends on the circumstances of each individual and the statement in R v Carter appears to me to be the one that governs in this Court.

In terms of time to be served in prison, the sentence imposed here was equal to the lowest of those I have referred to and the amounts received in all of those cases appear to have been somewhat less than the total of $66,454.89 received here.  The applicant, in his submissions to us, said that that amount was not completely accurate and he gave reasons why he said it was not.  The question does not seem to be raised in any detail on sentencing; however, it is clear on any view that the amount involved was some $50,000 or more in excess of what the applicant was entitled to.

The sentence imposed in this case was therefore, in my opinion, clearly within range, having regard also to the duration over which the offences were committed and the age of the applicant, who is now some 53 or 54 years old.  He has previous convictions, some of them for dishonesty, which are, however, admittedly rather old.

In my opinion the applicant's prospects of success on this appeal, if it were to be permitted to proceed, can fairly be assessed as nil.  The defrauding was not prompted, as it is seen to be in some cases, by any unusual hardship or matters of that kind. 

The applicant has a heart condition which may need treatment in prison; but, in sentencing, her Honour took account of that factor after calling for and receiving a medical opinion on the matter.

In addition, we have not here been favoured with any ready persuasive explanation of why the application for leave to appeal was not instituted for almost four months before this application to extend time was first signed on 1 December 2005.

In all the circumstances I can see no reason why the application to extend time should be granted and I would in fact dismiss it.

THE PRESIDENT:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The application is dismissed.

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