R v Smith

[2004] QCA 417

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2004] QCA 417

PARTIES:

R
v
SMITH, Paul Scott
(applicant)

FILE NO/S:

CA No 358 of 2004
DC No 2041 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2004

JUDGES:

McMurdo P, Jerrard JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – RECOGNISANCES – GENERALLY – applicant pleaded guilty to one count of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage – sentenced to imprisonment for two years, to be released after three months on a recognisance for three years in the amount of $3000 under s 20 Crimes Act 1914 (Cth) – whether learned sentencing Judge empowered to order that the period of the recognisance be longer than the period of the sentence to be served in the community

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – applicant fraudulently claimed social security payments amounting to $30,195.43 at the behest of and for the sole benefit of another – offending occurred over three year period – applicant suffering from depressive illness at time of offences – applicant repaying moneys to Centrelink – applicant had no prior criminal convictions – whether sentence imposed was manifestly excessive

Crimes Act 1914 (Cth), s 16F, s 20, s 20A

Edwards v Pregnell (1994) 74 A Crim R 509, considered
O'Brien v R (1991) 57 A Crim R 80, considered
Selimoski v Picknoll, unreported, Full Court of the Supreme Court of WA, No 1088 of 1992, 6 August 1992, distinguished
Walsh v R (1993) 69 A Crim R 579, considered

COUNSEL:

C J Callaghan (sol) for the applicant
D R Kent for the respondent

SOLICITORS:

Callaghan Lawyers for the applicant
Commonwealth Director of Public Prosecutions for the respondent

1. McMURDO P:  Mr Smith pleaded guilty on 8 October 2004 to one count of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage.  He was sentenced on each count to "imprisonment for two years, but to be released after three months on a recognisance for three years in the amount of $3,000".  He contends that the sentence imposed was unlawful and, if lawful, that it was manifestly excessive.

1. I will deal first with Mr Smith's contention that the learned sentencing judge erred in law by imposing a sentence that he was not empowered to impose. The sentence was imposed under s 20(1)(b) Crimes Act 1914 (Cth) ("the Act"). Section 20(1) provides:

"20. (1)  Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:

(a)by order,…