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

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

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…

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 R v Oag

Details

AGLC: R v Oag [1993] QCA 225
Case: [1993] QCA 225
Decision Date: 17/06/1993

CaseChat Overview and Summary

In the matter of R v Oag, the applicant, John Alan Oag, applied for leave to appeal against the sentence imposed by the Wynnum Magistrates Court. The applicant was found guilty of obtaining unemployment benefits worth approximately $20,000, despite being employed at the time. He pleaded guilty to four charges of knowingly obtaining payment of a benefit or allowance that was not payable under the Social Security Act 1947. The applicant had no prior convictions and made full restitution.

The legal issue before the Court was whether the sentence imposed by the Magistrate was appropriate and whether leave to appeal should be granted. The maximum permissible penalty for each charge was imprisonment for twelve months with or without a fine. The Magistrate sentenced 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 Court of Appeal found that the Magistrate made an error in imposing a custodial sentence. The Court took into account the applicant's personal circumstances, including his remorse, the fact that he was the sole income earner for his family, and his family's problems at the time of the offences. The Court concluded that deterrence could be achieved by imposing a period of imprisonment initially suspended for a substantial period during which the applicant must be of good behaviour. The Court granted leave to appeal and allowed the appeal, setting aside the sentence imposed below and imposing a new sentence in its place.

In lieu of the original sentence, the Court sentenced the applicant 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, he be released forthwith upon him giving security by recognizance in the sum of $1,000.00 conditioned that he be of good behaviour for a period of three years, perform eighty hours of unpaid community service, report to an authorised Commission Officer at Brisbane within forty-eight hours, and comply with certain other conditions.

Orders