Ralph v Nawrojee
[2003] WASCA 5
•17 JANUARY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RALPH -v- NAWROJEE [2003] WASCA 5
CORAM: MURRAY J
ANDERSON J
TEMPLEMAN J
HEARD: 16 OCTOBER 2002
DELIVERED : 17 JANUARY 2003
FILE NO/S: FUL 67 of 2002
BETWEEN: TROY WILLIAM RALPH
Appellant
AND
KEVIN NAWROJEE
Respondent
Catchwords:
Criminal law - Appeal against sentence- Social security fraud - Whether error in taking account of uncharged overpayments - Whether offence aggravated by knowledge of false claim - Whether proper consideration of statutory history of level of penalty - Weight to be given to deterrence - Prolonged and continuous fraud - Voluntarily ceasing to offend - Youth - First offence - Established employment - Rehabilitation - Turns on own facts
Legislation:
Crimes Act 1914 (Cth), s 20(1)(b)
Social Security (Administration) Act 1999 (Cth), s 215
Social Security Act 1991 (Cth), Pt 2.12, s 593(1)(a), s 1347, s 1350
Result:
Appeal allowed
Recognisance order imposed
Category: A
Representation:
Counsel:
Appellant: Ms G A Archer
Respondent: Ms R V C Fogliani
Solicitors:
Appellant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dicker v Mills [1997] SASC 148
Kovacevic (2000) 111 A Crim R 131
Kovacevic v Mills (2000) 76 SASR 404
Lutter v Hubbard [2000] WASCA 248
Nunn v Kinnon (1988) 4 WAR 459
R v Cameron and Simounds (1993) 171 LSJS 305
R v Livingston Stewart (1987) 85 Cr App Rep 66
R v Perks, unreported; CCA of NSW; No 325 of 1986; 8 May 1987
R v Van Tung Luu, unreported; CCA of NSW; No 321 of 1983; 7 December 1984
Vasin and Scherf v The Queen (1985) 39 SASR 45
Wilkinson v Morrissey (2000) 115 A Crim R 98
Case(s) also cited:
Hayward v Hubbard [2000] WASCA 416
Norris v The Queen 121 A Crim R 227
R v Purdon, unreported; SCt of NSW; Library No 60659; 27 March 1997
MURRAY J: I have had the benefit of reading in draft, the reasons of Anderson J, with which I agree. I agree also that we should complete the process of making final orders by substituting for the sentence of 9 months imprisonment, a sentence of 6 months imprisonment.
ANDERSON J: This is an appeal from the judgment of a single Judge of this Court dismissing an appeal against the severity of a sentence imposed in the Court of Petty Sessions at Armadale for an offence against the Social Security (Administration) Act 1999 (Cth).
The appellant was in receipt of unemployment benefits in the form of the Newstart allowance payable under Pt 2.12 of the Social Security Act 1991 (Cth). A basic qualification for the grant of a Newstart allowance in respect of a period is that throughout that period the recipient was unemployed: Social Security Act s 593(1)(a). The provisions which cover the entitlement to the continuation of Newstart allowance instalments are exceedingly complex and take up more than 100 pages in the Act. For present purposes it is enough to know that payments were being made to the appellant by fortnightly instalments and the entitlement to a continuation depended on the appellant lodging a fortnightly claim in which he was required to notify the designated government agency, Centrelink, of any income which he had earned during the period in question. Receipt of income after the grant of the Newstart allowance affected the rate at which instalments continued to be payable.
By s 215 of the Social Security (Administration) Act it is provided that:
"(1)A person must not obtain:
(a)payment of a social security payment under the social security law; or
(b)payment of an instalment of a social security payment under the social security law
knowing that the payment is:
(c)not payable at all; or
(d)only payable in part."
The complaint against the appellant laid by the respondent in the Court of Petty Sessions at Armadale averred that:
"Between the 13th day of July 2000 and the 22nd day of February 2001 at Cannington … [the appellant] did knowingly obtain payments of a social security payment under the social security law, namely the Newstart Allowance which were only payable in part, contrary to sections 215 and 217 of the Social Security (Administration) Act1999."
The period stated in the complaint is 32 weeks or 16 fortnights. During this period the appellant completed 12 fortnightly application forms declaring that he had earned no income when in fact he had earned a total of $9,699.90 in employment with a company, Foseco Pty Ltd, by whom he had been employed since 10 July 2000. It was not in dispute that by failing to disclose this income the appellant obtained payments of social security instalments which he knew were only payable in part. The overpayments totalled $4,525.27.
The appellant pleaded guilty and was sentenced to imprisonment for 9 months with an order that he be released after serving 3 months on condition that he enter into a bond to be of good behaviour for 12 months with a security of $2,000. He was also ordered to make restitution of the amount of the overpayments. This is a form of sentence authorised by s 20(1)(b) of the Crimes Act 1914 (Cth).
The appellant appealed against the severity of the custodial part of this sentence. White AUJ dismissed the appeal and the appellant now appeals by leave to this Court against the dismissal of that appeal on four grounds.
At the conclusion of argument the Court announced that the appeal would be allowed with reasons to be given later but that pending the delivery of those reasons the recognisance release order made by the Magistrate should be set aside and in lieu thereof there should be an order that the appellant be released forthwith upon entering into a recognisance to be of good behaviour for the period of 12 months.
These are my reasons for joining in that decision and for concluding as I do that the head sentence of 9 months should be reduced to 6 months.
The first ground of appeal - ground 1(A)
By this ground of appeal the appellant contends that White AUJ erred in failing to hold that the Magistrate was in error in treating certain matters as aggravating the offence when they were not capable of aggravating the offence.
In the statement of facts which were read to the Magistrate by the prosecutor it was said in reference to the history of the appellant's dealings with Centrelink prior to the period in question:
"The defendant has been in receipt of either Jobsearch allowance or Newstart allowance intermittently since 1994.
…
The defendant has incurred two previous overpayment debts. Between 28 December 1999 to 21 February 2000 the sum of $1,036.03 in Newstart allowance when the defendant failed to declare to Centrelink income earned from employment. Between 22 February 2000 to 6 March 2000 the sum of $326.70 when the defendant again failed to declare to Centrelink income earned from employment. Withholdings from benefits were being made in repayment of these overpayment debts. Repayment has not yet been made in full."
In his sentencing judgment the Magistrate said:
"…Now, in relation to the two previous overpayments … you are not charged with any offence in relation to [them] … and they form no part, or your actions on times [sic] form no part of the sentencing process because there is no allegation that you acted knowing that the payments shouldn't have been made, but they certainly indicate that you knew that you hadn't declared income to the Department."
This observation as to state of the appellant's knowledge was later repeated when the Magistrate said, in referring to the appellant's antecedents:
"In 1999 in Perth you were convicted of the offence of stealing and a spent conviction order is made in relation to that matter so no notice can be taken of that, but what can be taken notice of in the Court is that prior to the period of these offences you certainly knew that you had to provide correct information to the Department of Social Security…"
The Magistrate returned to this subject again in referring to the level of criminality which he considered was involved in the offence in question. He said (at AB 28):
"As I have said, the circumstances of the offence make it a serious offence. It was over a period of some 12 fortnightly applications forms. The amount of money was overpayment of $4,525.27. The defendant did earn income between those dates of some $9,699. He certainly knew that he had to notify the Department of any change of his circumstances. That he failed to do."
Counsel for the appellant, Ms Archer, submitted that these remarks when read in the context of the judgment as a whole suggest that the Magistrate wrongly treated the mere fact that the appellant had previously obtained overpayments as aggravating the charged offence. It seems fairly clear that it was part of the prosecution case that the earlier overpayments were to be taken into account by the Magistrate as a matter affecting sentence. So much is to be inferred from the emphasis given by the prosecutor to these overpayments in the statement of facts read to the Court. Why they should be taken into account was not explained by the prosecutor. No charges were laid in respect of them and for all that is known they were obtained inadvertently. It would have been wrong therefore to sentence the appellant on the basis that because they had been made the appellant needed to be dealt with more firmly than would otherwise have been the case. The question is whether the Magistrate did make this mistake as submitted by Ms Archer. I am not persuaded that he did. He expressly said that "your actions [in obtaining the uncharged overpayments] form no part of the sentencing process because there is no allegation that you acted knowing that the payments shouldn't have been made…". Accordingly, in so far as this ground of appeal is based on the premise that the Magistrate took the uncharged overpayments into account against the appellant when he should not have done so, I would not uphold it.
However, the other proposition on which the ground of appeal is based has more force. It concerns the Magistrate's emphasis in his sentencing remarks on the appellant's state of knowledge due to his past dealings with the department concerning overpayments. In the passages set out above, the Magistrate observed more than once that the appellant's previous experience with respect to overpayments and the steps which had been taken against him to recover the overpayments must have fixed the appellant with a full appreciation of his disclosure obligations. Ms Archer submitted that the Magistrate treated this as aggravating his offending. The passages do indicate that this was the Magistrate's approach and I would uphold the submission that it was an erroneous approach. The offence which is created by s 215 is the obtaining of a social security payment knowing that the payment is not payable, or is payable only in part. That the appellant knowingly submitted false claims could not therefore of itself aggravate the offence. A matter which is an element of the offence (in this case knowledge) cannot of itself also be a matter of aggravation.
I would therefore uphold this ground of appeal.
The second ground of appeal - ground 1(B)
By this ground of appeal it is pleaded that White AUJ ought to have held that the Magistrate erred in approaching sentencing in the belief that there had been an increase in the penalties prescribed for the offence in question thus reflecting a legislative intention that the offence should now be treated more seriously by the courts. What the Magistrate said on this subject was:
"… The nature of the offence is one of the matters to be taken into account. The Parliament has demonstrated, by increasing penalties, that it takes a serious view of the breaches of the legislation which concern an ever increasing prevalence of fraud…"
In truth there has been no increase in the maximum penalty for a contravention of s 215 since the section came into operation in March 2000. The legislative history is as follows. Prior to the enactment of the Social Security (Administration) Act 1999 (Cth) the offence of knowingly obtaining overpayments of social security was to be found in s 1347 of the Social Security Act 1991 (Cth). The maximum penalty prescribed by s 1350 was 12 months' imprisonment and/or a fine of $2,000. In December 1991 the section was amended to increase the penalty from 12 months' imprisonment and/or a fine of $2,000 to 2 years' imprisonment. However, in September 1993, the penalty was reduced to 12 months' imprisonment and/or a fine calculated by reference to a formula producing a maximum fine of $6,000. By an amendment to the Act in 1997 there was a slight increase to the maximum monetary penalty. It would appear from the Social Security Legislation Amendment Bill 1993 Explanatory Memorandum that the reason why the maximum custodial penalty was brought back to 12 months was so that the offence could be dealt with summarily in courts of summary jurisdiction rather than on indictment.
There is nothing in this history which would justify approaching sentencing for a contravention of s 215 on the basis that there is a legislative intention that sentences for offences against s 215 should be firmed up. As the Magistrate plainly misdirected himself in this respect his sentencing discretion miscarried and in my respectful opinion White AUJ ought to have so held.
I would uphold this ground of appeal also.
The third and fourth grounds of appeal
As I would uphold the first two grounds of appeal I would set aside the sentence and proceed to re‑sentence. This would make it unnecessary to consider the third ground of appeal (ground 1(C)) which complains that the sentence was manifestly excessive, save to the extent that the matters which are put in support of this ground of appeal affect the process of re‑sentencing. The final ground of appeal (ground 2) pleads that White AUJ himself erred in approaching the question of whether the sentence was excessive because he approached that question as if there had been (to use his Honour's words) "12 separate frauds upon the social security system, each of which attracted a maximum penalty of 12 months' imprisonment". Although I believe it is unnecessary to reach a conclusion about it I am not persuaded that White AUJ made the mistake of thinking that the appellant had been charged with 12 separate offences. His Honour is to be understood as simply adumbrating the degree of culpability in the appellant's conduct.
If the first two grounds of appeal are upheld, as I would do, the question is whether this Court should impose a sentence different from and less severe than the sentence imposed by the Magistrate.
Sentencing principles - social welfare fraud
It is widely recognised that a very important sentencing consideration in cases of this kind is deterrence. It has so often been said that social security fraud is prevalent, very easy to commit and difficult and expensive to detect. The temptation to make false claims is ever present and offending of this kind strikes at the heart of the social security system by tending to undermine it. In order to function effectively, the social security system must be based on trust. The introduction of a system of comprehensive checks of every claim in order to combat fraud would make the delivery of social security services slow and cumbersome and this in turn could result in real hardship to persons in urgent need. A system based on trust is open to abuse and this is all the more reason why, when abuse is discovered, sentences must be salutary. The morale of the community may be adversely affected if it is thought that social security cheats get away with it or are dealt with leniently.
The courts have a responsibility to protect the integrity of the system and must do what they can, within the limits of accepted sentencing principles, to deter such offending. As Lane CJ said in R v Livingston Stewart (1987) 85 Cr App Rep 66, social services cheating involves "the dishonest abstraction of honest taxpayers' money and [such offences] are not to be treated lightly".
There are many cases which say that imprisonment is a starting point where there was sustained and deliberate fraud. See for example, Vasin and Scherf v The Queen (1985) 39 SASR 45; R v Cameron and Simounds (1993) 171 LSJS 305 especially at 306 ‑ 307 per King CJ; R v Van Tung Luu, unreported; CCA of NSW; No 321 of 1983; 7 December 1984; R v Perks, unreported; CCA of NSW; No 325 of 1986; 8 May 1987. These and a number of other cases are referred to in the judgment of a five member coram of the Full Court of the Supreme Court of South Australia in Kovacevic v Mills (2000) 76 SASR 404. See also Nunn v Kinnon (1988) 4 WAR 459. The cases recognise that because of its widespread and insidious nature, social security fraud can impose substantial burdens on the section of the community which through payment of taxes provides the funds for welfare services.
The appellant engaged in what from any point of view was a prolonged and continuous fraud. His circumstances were not particularly extenuating. There is no suggestion that he was destitute or driven to cheating by distressing misfortune. He was of the age of 25 years, single and with no dependants. Evidence as to his total earnings during the period in question show that his average earnings from employment with Foseco Pty Ltd over the 32 weeks was a little more than $300 per week. His only major expense appears to have been rental in the order of $130 per week. The $4,525 he obtained in overpayments of social security instalments during the same period represents a little more than $140 per week.
He has a record of court appearances for other offences including for a burglary committed when he was 17 and convictions for reckless driving in 1996.
In the submissions made on his behalf in the Court of Petty Sessions it was said that the appellant did not disclose his earnings for fear that he would have no money if his job with Forseco Pty Ltd did not continue. It was said on his behalf that he was undergoing a work trial of six months as a storeman and it was not certain that he would be kept on.
In my opinion, the appellant's uncertainty as to whether the employment which he had obtained with Foseco Pty Ltd in July 2000 would continue cannot be given much weight as a mitigatory factor. Without wishing to be too definite about it, I seriously doubt whether uncertainty about employment prospects could ever be a worthwhile mitigating factor in this kind of social services fraud although cf Kovacevic (supra) at 134, 149. Uncertainty about employment prospects must be a commonplace amongst people who manage to obtain work whilst receiving this form of allowance. In this case, there is an additional reason to treat with scepticism the claim that he made fraudulent claims because he feared that his employment might not continue. The period of offending stretched over 8 months during which he was continuously in the employment of the same employer, an employment which he still held at the time of his appearance in the Court of Petty Sessions. There was some attempt by his counsel to suggest that his employment during the period covered by the charge was not continuous but this seems to be contradicted by the amount that he earned in that time, the total of which, as I have already indicated, represents an average weekly earning of a little more than $300. This is what he was earning at the time of sentence when, according to his counsel he was in secure full‑time employment.
There are however, several things that can be said for the appellant. Although he probably had little choice he did plead guilty. There are no prior offences involving the false claiming of social security benefits. He is a relatively young man with reasonable antecedents, at least in recent times, and he has now managed to achieve full‑time steady employment in a job which he has held since July 2000. Importantly, he is to be dealt with on the basis that he voluntarily ceased offending before he knew he had been detected.
The fact that a social services offender ceases offending of his own volition and before his pattern of fraudulent claims is detected is a very significant mitigatory factor: Kovacevic (supra) at 148. As to this, there is some information which would suggest that the appellant stopped claiming only after he realised his offending had come to light, which it certainly had. In the statement of facts read to the Court by the prosecutor it was said that "the defendant was notified by Centrelink on 21 January 2001 of overpayments occurring in the period 29 June 2001 to 13 December 2001 amounting to $3,500.11 due to non‑disclosure of earnings". The prosecutor said that notwithstanding that notification, the appellant persisted in lodging false fortnightly applications, failing to declare any income and that he only ceased lodging applications after receiving further notifications from Centrelink demanding that he attend for interview. It was further said by the prosecutor that the appellant failed to attend the interview, the implication being that right to the end the appellant refused to face up to his dishonesty indicating a lack of remorse if not recalcitrance. However, in answer to this, the appellant said, through his counsel, that these notifications did not reach him or at any rate he did not read them; and he maintained through his counsel that it was by his own volition that he ceased to make false claims. It is important to note that this was not contested by the respondent. Counsel for the prosecution did not seek to put this important matter in issue.
I think that these are the main matters that are to be taken into account for and against the appellant. In coming to the question of what sentence must be imposed, it is to be borne in mind that the legislation which the appellant contravened is Commonwealth legislation and a degree of uniformity across the Commonwealth in the penalties that are handed down for like offences is obviously desirable. The penalties in this State should not be markedly different from penalties in similar cases in other States. It is probably futile to search for a tariff and the difficulty in finding sentencing guidance in other cases is compounded by the fact that sometimes multiple charges are preferred and sometimes a single charge is preferred (as in this case) encompassing multiple offences.
In Kovacevic (supra) the appellant was charged with 34 offences. Seventeen counts alleged the knowing and reckless making of a false statement in connection with a claim for social security payments and 17 counts alleged the knowing obtaining of a social security payment which was not payable. In other words the offender was separately charged in respect to each false claim form and in respect of each overpayment. In the South Australian case of Dicker v Mills [1997] SASC 148 (per Debelle J), which is strikingly similar to the case we are considering, the appellant pleaded guilty to 11 counts of making a false claim and two counts of receiving unemployment benefits to which he was not entitled. In Kovacevic (supra) the total amount involved was $7,065.92 and in Dicker (supra) it was $4,537.82. In the case which we are considering, although there was a single charge only, the amount involved ($4,525.27) is almost exactly the same as in Dicker (supra) and not much less than the amount in Kovacevic (supra).
When all is said and done this case involves a young single man in steady employment who fraudulently claimed about $140 per week in social security instalments throughout a period of 8 months when he was in gainful employment earning enough to meet his known financial commitments with something to spare. All that has been said by the courts about the need for firm treatment of such offenders is applicable and in my opinion it is clearly a case for a custodial penalty.
It is not the worst case of its kind in terms of the total amount of money involved or the duration of the misconduct. There was no sophistication in the cheating in as much as it was not a case of fictitious names being used or anything of that sort. The level of criminality and the amount of money involved are similar to what was involved in the cases of Dicker (supra) and Kovacevic (supra). In those cases the head sentence was 8 months and 10 months respectively. I would accept those cases as a guide even although they were both multiple charge cases. Recognising that in this case the Commonwealth has elected to prefer a single charge only, so that the maximum custodial sentence that might be imposed is 12 months, I would re‑sentence the appellant to 6 months' imprisonment. I think this is what is both necessary and sufficient to serve the well settled sentencing principles which have been laid down in the field of social security fraud. It takes into account the matters of mitigation that I have mentioned.
It is quite common for sentences for offences against the social securities legislation to be partially suspended in the case of first offenders. This is no doubt because in so many cases the offender is a person of otherwise good character who will never offend in the same way again. I think this case probably just falls into that category especially if it is accepted (as it must be) that the appellant ceased offending before he knew that he had been detected and appears now to have established himself in the workforce in a worthwhile occupation. To require that he now serve the whole of the head sentence is likely to seriously damage his prospects of keeping his job and/or getting another one and is likely therefore to set back his rehabilitation which seems to be well on the way to being complete.
It is however proper that he serve some part of the custodial term as otherwise he will not be sufficiently punished and the community will not have been sufficiently vindicated in respect of his substantial fraud on the public purse which so far has not been fully remediated by reparation. In Kovacevic (supra) the Magistrate ordered release after 3 months of 10 months had been served on condition that a bond be entered into to be of good behaviour for a period of 3 years. The Full Court declined to interfere with the head sentence or the length of the good behaviour bond but ordered that the defendant be immediately released. It does not appear from the judgment whether any part of the 3 months had actually been served. In Dicker (supra) Debelle J declined to interfere with the head sentence of 8 months or with the order that the defendant be released after 2 months upon entering into a bond to be of good behaviour for 24 months. There were some weighty positive factors present in the case of Kovacevic (supra) which were not present in Dicker (supra) nor present in this case including that, as soon as the defendant obtained full‑time employment he notified the department that he was employed and ceased claiming. When he was notified that his offending had been detected, the defendant immediately made full reparation. There were strong indications of genuine remorse.
I cannot see any material distinction between the case of Dicker (supra) and the case before us. There are factual differences of course but to my mind none that are material. In Dicker (supra) there were 11 false claim forms whereas in this case there were 12. The total amount involved was much the same in each case. The defendant in Dicker (supra) was a male aged 50, divorced with no dependants. In this case the appellant is a male aged 25, single with no dependants. The defendant in Dicker (supra) had good employment prospects which might be jeopardised by having to go to prison. That is so in this case. The defendant in Dicker (supra) was making reparation by withholding part of his current social security benefits. We are told the appellant is making reparation at the rate of 10 per cent of his gross wage. The defendant in Dicker (supra) had led an entirely blameless life with no previous convictions for any offence. The appellant cannot make that claim. He has prior convictions although the most serious is for burglary as a juvenile. In Dicker's case (supra) Debelle J accepted that the defendant's fraudulent conduct had been driven by difficult financial circumstances which were such as to entitle him to real sympathy. The appellant in this case cannot make that claim. Subject to what follows I can see no reason why the period of the term of imprisonment which should be immediately served should be any less in this case than in that case.
I should mention that Ms Archer, on behalf of the appellant, referred us to the unreported decision of Lutter v Hubbard [2000] WASCA 248. In that case the defendant had faced charges in the Court of Petty Sessions relating to an overpayment of Newstart allowance instalments amounting to $12,218 over a period of 34 fortnights during which he had been gainfully employed earning approximately $34,000. He was sentenced by the Magistrate to 12 months' imprisonment without a recognisance release order. On appeal to a Judge of this Court the sentence of 12 months' imprisonment was confirmed but it was ordered that the defendant be immediately released on entering into a bond to be of good behaviour for a period of 12 months. On the strength of that case, Ms Archer naturally submitted that we should order the immediate release of the appellant. I would accept that the offending in the case of Lutter (supra) was more serious than the offending in the case before us. However, it would appear that in the case of Lutter (supra) the Judge may have been influenced by a particular factor not present in this case, namely, the effect that any term of imprisonment would have on the defendant's family. The details are not fully revealed in the judgment but it is apparent that the defendant was supporting young children. The case is therefore distinguishable on the facts.
The justification for the order which was made at the conclusion of argument in this case that the appellant be released forthwith was simply a practical one with an element of mercy. The appellant has spent 28 days in custody for which he would have to be given credit. He would therefore be returned to prison for a very short period and in the particular circumstances, including the length of time that this matter has been hanging over his head, that seemed to me to be most unlikely to serve any useful purpose. For that reason alone and not because it would in ordinary circumstances be an adequate sentence I concluded that he should now have the benefit of an order for immediate release on the conditions imposed.
TEMPLEMAN J: I have had the advantage of reading in draft, the reasons published by Anderson J. I agree with those reasons, and with the conclusion, in which his Honour explains why the Court made the order it did, when the appeal was heard.
I would add only this. In her submissions on behalf of the appellant, Ms Archer relied on my decision in Wilkinson v Morrissey (2000) 115 A Crim R 98.
In that case, I noted that many of the authorities to which I was referred, in which it had been held that sentences of imprisonment were the only appropriate disposition for social security frauds, were decided before the Sentencing Act 1995 came into force. I pointed out that other options are now available under that Act. These include sentences which may be served in the community.
I did not intend, however, to distinguish the earlier cases, as Ms Archer submits: I only observed that it might now be appropriate to say that a sentence of imprisonment is not always the appropriate disposition for an offence of this kind. Indeed, as Anderson J has said in his reasons, it is quite common for sentences for offences against the social securities legislation to be suspended in the case of first offenders. This accords with the view expressed by the Full Court of the Supreme Court of South Australia, in Kovacevic (2000) 111 A Crim R 131 at [43]:
"In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served."
That brings me back to my decision in Wilkinson v Morrissey, which might seem anomalous. The respondent had pleaded guilty to two offences of Social Security fraud, contrary to s 1347 of the Social Security Act 1991 (Cth), involving a total of over $9,000, during a period of about 8 months. The respondent was sentenced by a Magistrate who imposed a fine of $250.
On appeal, by the Crown, I increased the fine to $1,000 and made a Community Based Order involving a community service element of 72 hours.
I emphasise that the reason for not imposing a sentence of imprisonment was that the Crown did not press for a custodial sentence. Counsel for the Crown told me at the outset that this was the Crown's position, having regard to considerations of double jeopardy, even though a sentence of imprisonment might have been appropriate otherwise.
Wilkinson v Morrissey is therefore an unusual case, which turned on its own facts.
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