R v Oag

[1993] QCA 225

IN THE COURT OF APPEAL [1993] QCA 225

SUPREME COURT OF QUEENSLAND

C.A. No. 73 of 1993

Brisbane
[R. v. John Alan Oag]

BETWEEN:

T H E Q U E E N

v.

JOHN ALAN OAG

Applicant

The President
Mr Justice McPherson

Mr Justice Dowsett

Judgment delivered 17/06/93
JUDGMENT OF THE COURT

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW IN RESPECT OF THE SECOND COMPLAINT AND SUMMONS WHICH CONCERNS A CHARGE THAT THE APPLICANT KNOWINGLY OBTAINED PAYMENT OF AN ALLOWANCE BETWEEN 25 DECEMBER 1991 AND 31 MARCH 1992 WHICH WAS NOT PAYABLE CONTRARY TO SECTION 1347 OF THE SOCIAL SECURITY ACT. IN LIEU THEREOF, THE APPLICANT IS SENTENCED TO BE IMPRISONED FOR A PERIOD OF NINE MONTHS WITH AN ORDER THAT, PURSUANT TO SUBSECTION 20(1)(b) OF THE CRIMES ACT 1914 AS AMENDED (COMMONWEALTH), HE BE RELEASED FORTHWITH UPON HIM GIVING SECURITY BY RECOGNIZANCE IN THE SUM OF $1,000.00 CONDITIONED THAT:

1.    HE BE OF GOOD BEHAVIOUR FOR A PERIOD OF THREE YEARS;

2.    HE PERFORM EIGHTY HOURS OF UNPAID COMMUNITY SERVICE;

3.    HE REPORT TO AN AUTHORISED COMMISSION OFFICER AT BRISBANE WITHIN FORTY-EIGHT HOURS;

4.   HE REPORT TO, AND RECEIVE VISITS FROM, AN AUTHORISED COMMISSION OFFICER AS DIRECTED BY THAT OFFICER;

5.    HE PERFORM IN A SATISFACTORY MANNER FOR THE NUMBER OF HOURS SPECIFIED IN THIS ORDER SUCH COMMUNITY SERVICE AS AN AUTHORISED COMMISSION OFFICER DIRECTS AT SUCH TIMES AS THE AUTHORISED COMMISSION OFFICER DIRECTS;

6.   WHILE PERFORMING THAT SERVICE HE COMPLY WITH EVERY REASONABLE DIRECTION OF A SUPERVISOR;

7.    HE ADVISE AN AUTHORISED COMMISSION OFFICER OF EVERY CHANGE OF HIS PLACE OF RESIDENCE AND EMPLOYMENT WITHIN TWO BUSINESS DAYS OF THAT CHANGE; AND

8.    HE COMPLY WITH EVERY REASONABLE DIRECTION OF AN AUTHORISED COMMISSION OFFICER.

CATCHWORDS: CRIMINAL LAW - Unemployed benefits of $20,000 wrongly obtained - No previous convictions - Plea of guilty and full co- operation - Full restitution made - Family problems at the time - 9 months imprisonment plus order for release forthwith on security of $1,000.00 and 80 hours community service and 3 years good behaviour.

Counsel:  Mr R.S. Jones for the applicant
Mr D.C. Boyle for the respondent

Solicitors: Messrs. R.G. Kilner and Black for the

applicant respondent

Hearing Date(s):  15/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 73 of 1993

Brisbane
Before The President

Mr Justice McPherson

Mr Justice Dowsett

[R. v. Oag]

BETWEEN:

T H E Q U E E N

v.

JOHN ALAN OAG

Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/06/93

This is an application for leave to appeal against a sentence of imprisonment imposed in the Wynnum Magistrates Court on 18 January 1993. The applicant was released on bail after four days' incarceration and seeks to avoid being returned to prison.

Although employed at the time, the applicant obtained unemployment benefits or allowances of one kind or another from the Commonwealth Department of Social Security for a period of about sixteen months from October 1990 to March 1992. The total amount wrongly obtained by the applicant was a little under $20,000.00. He was charged with four offences of knowingly obtaining payment of a benefit or allowance which was not payable contrary to the Social Security Act 1947 as amended (Commonwealth). When his misconduct was discovered, the applicant, who has no other convictions, co-operated fully and pleaded guilty to all charges. Three of the complaints related to summary offences while the fourth was also prosecuted summarily although it could have been charged on indictment. The appeal to this Court is concerned only with the fourth offence, but an appeal has been brought to the District Court in respect of the other offences. That appeal has not yet come on for hearing.

The maximum permissible penalty in respect of each charge was imprisonment for twelve months with or without a fine. The Magistrate imposed one penalty in respect of all four charges, sentencing the applicant to eighteen months' imprisonment to be released after three months upon giving security by recognizance in the sum of $3,000.00 to be of good behaviour for a period of three years. The respondent accepts that the magistrate made an error and the leave to appeal should be granted and the appeal allowed, but asks this Court nonetheless to impose a sentence of imprisonment.

As the magistrate correctly noted, the applicant engaged in deliberate misconduct over a substantial period with a considerable amount of money involved. Further, the applicant was, at the time, earning a significant wage.

However, the comparative cases referred to do not make a custodial sentence essential, and due weight must be given to the applicant's personal circumstances.

The applicant is a married man, 33 years of age, and is the sole income earner for his wife and two young children. At the time of the offences, the applicant's wife was both ill and pregnant with their second child. It was thought then that she had cancer, although it has subsequently been ascertained that her illness is not so serious. Further, for part of the time, the applicant's wife's sister and her two children were living with, and effectively dependent on, the applicant's family. The applicant has no prior criminal conviction and full restitution has been made with money borrowed by the applicant from his parents. The Court was informed by the applicant's counsel that he is prepared to give security by recognizance to be of good behaviour and to perform unpaid community service.

The major factor in favour of a custodial sentence is the need for deterrence, especially since the effective operation of the social security system is largely dependent upon the honesty of those who benefit. The Court was told on behalf of the respondent that offences such as those committed by the applicant are prevalent and are difficult and costly to detect.

Nonetheless, in the particular circumstances of this case, the applicant should be given a further chance. Deterrence can be sufficiently achieved by the imposition of a period of imprisonment which is initially suspended for a substantial period during which the applicant must be of good behaviour. The need for deterrence must be balanced against the applicant's personal circumstances, including his remorse and the problems which his family were experiencing at the time.

Accordingly, leave to appeal should be granted and the appeal allowed. The sentence imposed below in respect of the second complaint and summons which concerns a charge that the applicant knowingly obtained payment of an allowance between 25 December 1991 and 31 March 1992 which was not payable contrary to section 1347 of the Social Security Act should be set aside and in lieu thereof the applicant should be sentenced to be

imprisoned for a period of nine months with an order that, pursuant to subsection 20(1)(b) of the Crimes Act 1914 as amended (Commonwealth), he be released forthwith upon him giving security by recognizance in the sum of $1,000.00 conditioned that:

1.    He be of good behaviour for a period of three years;

2.    He perform eighty hours of unpaid community service;

3.    He report to an authorised Commission Officer at Brisbane within forty-eight hours;

4.   He report to, and receive visits from, an authorised Commission Officer as directed by that Officer;

5.    He perform in a satisfactory manner for the number of hours specified in this order such community service as an authorised Commission Officer directs at such times as the authorised Commission Officer directs;

6.   While performing that service he comply with every reasonable direction of a Supervisor;

7.    He advise an authorised Commission Officer of every change of his place of residence and employment within two business days of that change; and

8.    He comply with every reasonable direction of an authorised Commission Officer.