R v Glenis Cameron R v Justin Simounds No. SCCRM 93/134, SCCRM 93/135 Judgment No. 4051 Number of Pages 5 Criminal Law and Procedure Particular Offences Imposition on the Commonwealth

[1993] SASC 4051

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences - imposition on the Commonwealth - sentence - systematic and sustained fraud over period of 3 years - collecting double social security benefit by means of fictitious identity - two appeals by DPP. Order for immediate release under s.20(l)(b) Crimes Act overturned as inappropriate - paramount requirement of deterrence - sentence of 2 1/2 years and 2 years respectively affirmed - pre-release period of 9 months in each case, after reduction of 5 months in one case by reason of full restitution.

HRNG ADELAIDE, 19 July 1993 #DATE 19:7:1993
Counsel for appellant:             Mr B J Jennings QC
   with Ms J Rusalen
Solicitors for appellant:         Director of Public
   Prosecutions (Cwlth)
Counsel for respondent Cameron:    Mr P A R Scragg
Solicitors for respondent Cameron: Peter Scragg
Counsel for respondent Simounds: Mr B M Nitschke
Solicitor for respondent Simounds: Brian Nitschke

ORDER
Appeals in both cases allowed and the sentences imposed by the learned sentencing judge set aside.

JUDGE1 KING CJ There are before the court two applications by the Commonwealth Director of Public Prosecutions for leave to appeal against sentences imposed in the District Court on the respondents for crimes of imposition on the Commonwealth. By consent of all parties, the two appeals were heard together. They are unrelated appeals but they raise similar issues, and it was convenient, therefore, to the court and all parties for them to be heard together. 2. The respondent Cameron pleaded guilty to 25 charges of imposition on the Commonwealth in contravention of s.29(b) of the Crimes Act (1914). In addition to that, the District Court judge who dealt with the matter took into consideration a further 104 offences being two offences of knowingly making a false statement in connection with a claim for NewStart allowance in contravention of s.1344 of the Social Security Act, and 102 counts of knowingly obtaining payment of an instalment of unemployment benefit not payable in contravention of s.1347 of the Social Security Act. 3. The substance of the offending was that the respondent was receiving a supporting parent benefit in respect of a daughter in her own name of Glenis Cameron. At the same time she claimed and received unemployment benefit under an assumed name of Glenis Shalders. This continued for the period from 28 January 1988, until 28 November 1991. It involved, therefore, the assumption of a fictitious identity; it also involved the opening of a bank account in the fictitious name; and it involved periodically answering review questionnaires both in the correct name and also in the fictitious name. 4. As I have indicated, the period of the offending was three years and 10 months. The total amount unlawfully obtained during that period was $26,245.08. Full restitution of the amount owing has been made to the Commonwealth, the respondent having raised that sum of money from members of her family. 5. She has no other convictions, and her only appearance before a court is not relevant to the present offences. 6. The respondent initially denied the offences when questioned, but pleaded guilty when brought before the court. She has a daughter, who is now 11 years of age, and she is responsible for the care of that daughter. 7. The learned judge in the District Court imposed a sentence of two years and six calendar months, but he ordered, pursuant to s.20 of the Crimes Act, that the respondent be released immediately upon entering into a recognisance containing certain conditions as to good behaviour and supervision of a probation officer. The respondent Cameron is 29 years of age. 8. The respondent Simounds pleaded guilty to 27 charges of imposition on the Commonwealth. The learned sentencing judge took into account further offences being 56 offences of knowingly obtaining benefit not payable, one offence of opening a bank account in a false name, one offence of operating a bank account in a false name, and two offences of deceiving or misleading the Commissioner of Taxation. 9. The substance of the offending in this case was that the respondent received a double unemployment benefit, later NewStart allowance, one benefit being in his own name and the other in a false name of Justin Ifould. This offending, therefore, involved the assumption of a fictitious identity in order to obtain the second allowance. It also involved the opening and operating of a bank account in the fictitious name. It also involved periodically answering questionnaires not only in the offender's own name but also in the fictitious name during the period of the offending. The period of the offending was from 4 September 1989 until 20 July 1992, being a period of two years and ten months. The total amount unlawfully obtained in that way was $17,952.24. Up to the date of sentencing the respondent had made restitution in the sum of $319. The order made by the learned sentencing judge provided for payments of $100 per fortnight and we were told by counsel that those payments had been made. 10. Like Cameron, Simounds has pleaded guilty and like her is entitled to have that plea taken into account. In this case the learned judge sentenced the respondent to imprisonment for two years but ordered immediate release. Simounds has no other convictions. Since the commission of these offences he has obtained employment and there is every indication he is doing his best to make good in his employment and to advance himself by appropriate training. He was aged only 19 years at the time of the substantial part of this offending. He has been co-operative with the authorities. 11. In the case of both of these respondents the offending amounted to a systematic, deliberate and sustained fraud over a substantial period of time. The fraud involved planning and sustained implementation. The offenders, it is true, have no other convictions but that is of little significance when one is faced with such a sustained course of conduct of a criminal nature. This was not a case of a person with no prior convictions succumbing to temptation and being entitled, therefore, to rely upon the previous good record to secure the leniency of the court. Both of these offenders not only engaged upon a deliberate course of fraudulent conduct, but persisted in it over a long period of time. 12. The crimes committed are serious crimes. The social security system is the method by which society provides an income to those of it's members who, due to misfortune, are not able to provide an income for themselves. Parliament determines the conditions and the level of benefits, and no doubt, in doing so, determines not only what is necessary to meet the needs of welfare beneficiaries but also what society, through the taxpayer, can sustain in that regard. Abuse of the social security system jeopardises the system itself and therefore the welfare of all those who depend for their livelihood upon the system. It is the duty of the court to protect the social security system against this type of abuse by making orders which operate as an effective deterrence. Not only does a fraudulent abuse of the system jeopardise the system itself by placing an undue burden upon the taxpayer, and therefore, on society at large, but it also is a great injustice to all those welfare recipients who abide by the system, conduct themselves honestly and have to subsist on what is by no means a handsome income, namely the benefit prescribed by law as appropriate in the circumstances. It is a great injustice to those people if others are able with impunity to double their incomes by a fraud. 13. For these reasons the courts have a great responsibility to protect the integrity of the social security system by imposing punishments for deliberate and sustained fraud which are likely to operate as a deterrent to others who may be tempted. It is necessary to acknowledge and to appreciate that recipients of social security benefits are, almost without exception, subject to great financial pressures. They are obliged to maintain themselves and to provide for their needs on an income which is by no means handsome. Therefore, there must always be a temptation to enhance that income, and if it appears that that can be done without running the risk of substantial punishment, it is likely that others will be tempted to follow in the fraudulent course. It is necessary for the courts to send, and consistently send, a clear signal to all who might be so tempted, that sustained and deliberate fraud upon the system will mean going to gaol. 14. There are personal circumstances affecting both these respondents which excite considerable sympathy. Simounds is a young man and he has managed to get himself a job and do something towards stabilising his life in that way. It is tragic that the consequences of his criminal conduct might mean the disruption of that prospect of future employment. Ms Cameron is a sole parent. She has an 11 year old daughter who is dependent upon her for care. Obviously imprisonment will be a great burden to her, it also will involve penalising an innocent child. 15. All these matters are matters of concern to the court and clearly were of concern to the sentencing judge. 16. Nevertheless, in cases of this kind, that is to say of sustained and deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount. The necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations. 17. The learned judge exercised his discretion by ordering the immediate release of these respondents. He gave his reasons for so doing. I do not think that it is possible to identify in those reasons any specific error in the process, but, to my mind the immediate release of these offenders is so disproportionate to the degree of their offending that it must follow that there has been an error in the sentencing process. I surmise that that error is that the learned judge did not fully appreciate and apply the consideration that deterrence must be paramount in dealing with this type of deliberate and protracted social security fraud. 18. In my opinion, the sentencing discretion has miscarried and the order for immediate release cannot be sustained. In my opinion therefore, leave to appeal should be granted in both cases. The appeals in both cases should be allowed and the sentences imposed by the learned sentencing judge should be set aside. 19. In the case of Cameron, in lieu of the sentence imposed by the sentencing judge there should be a sentence of imprisonment for two years and six calendar months, commencing when the respondent is taken into custody to commence the service of that sentence. There should be an order that the respondent be released after the service of a period of imprisonment of nine months upon giving security by recognisance in the sum of $500 that she will comply with the following conditions, namely; (1) to be of good behaviour for a period expiring at the termination of the term of the sentence, and, (2) to be subject to, during the same period, the supervision of a probation officer and to obey all reasonable directions of such probation officer. There should be an order that a warrant issue for the apprehension of the respondent Cameron. 20. In the case of Simounds, in lieu of the sentence set aside, there should be a sentence of imprisonment for two years commencing forthwith. There should be an order that the respondent be released after the service of a period of nine months upon giving security by recognisance in the sum of $500 that he will comply with the following conditions, namely (1) to be of good behaviour for a period expiring at the termination of the term of the sentence, and (2) to be subject to, during the same period, the supervision of a probation officer and to obey all reasonable directions of such probation officer.

JUDGE2 DUGGAN J I agree with the orders proposed in each case by the Chief Justice and I also agree with the reasons which he has advanced in support of those orders.

JUDGE3 DEBELLE J I also agree with the reasons of the Chief Justice and the orders proposed.