Ralph v NOWROWJEE - [2002] WASCA 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RALPH -v- NOWROWJEE [2002] WASCA 32

CORAM: WHITE AUJ

HEARD: 13 FEBRUARY 2002

DELIVERED : 22 FEBRUARY 2002

FILE NO/S: SJA 1180 of 2001

BETWEEN: TROY WILLIAM RALPH
Applicant
AND
KEVIN NOWROWJEE
Respondent

Catchwords:

Criminal law - Appeal against sentence - Charge of knowingly obtaining payments contrary to s 215 and s 217 of the Social Security (Administration) Act 1999 - Fraud on the social security system - Sentence of 9 months' imprisonment, to be released after serving 3 months not manifestly excessive

Legislation:

Social Security (Administration) Act 1999 (Cth), s 215, s 217

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr S R C Senaratne
Respondent: Mr P N Bevilacqua

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Australian Coal v Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
King v Pavlos, unreported; SCt of WA (Walsh J); Library No 970493; 22 September 1997
Lowndes v The Queen (1999) 195 CLR 665
Pickett v Fox (1993) 112 FLR 345
R v Purdon, unreported; Court of Criminal Appeal of New South Wales; No 60659 of 1996; 27 March 1997
R v Tait (1979) 46 FLR 386
The Queen v Rossi and Bowman (1988) 4 WAR 463
Weng Keong Chan (1989) 38 A Crim R 337

Case(s) also cited:

Kasianowicz v Picknoll, unreported; SCt of WA (Murray J); Library No 930062; 9 February 1993
Laxton v Justice (1985) 38 SASR 376
Nunn v Kinnon (1988) 4 WAR 459
R v Liddington (1997) 18 WAR 394
R v Power (1974) 131 CLR 623
Wilkinson v Morrissey (2000) 115 A Crim R 98

WHITE AUJ: On 30 October 2001, the applicant pleaded guilty at his first appearance before the Armadale Court of Petty Sessions to an offence of knowingly obtaining payments of a social security payment under the social security law, namely the Newstart Allowance which were only payable in part, contrary to s 215 and s 217 of the Social Security (Administration) Act 1999 (Cth) ("the Act"). The offence was committed over the period between 13 July 2000 and 22 February 2001. In essence, the offence consisted of the applicant's fortnightly claim for such payments without disclosing, as was the fact, that he was in receipt of wages for part-time work secured by him. During the period in question he had received wages amounting to $9,699.00 and the amount of social security moneys overpaid to him amounted to $4,525.27.
The applicant was sentenced to a term of 9 months' imprisonment, subject to an order that he serve 3 months in prison and the remaining 6 months term be suspended on entering into a $2,000.00 good behaviour bond for a period of twelve months.
The applicant now appeals against that sentence on the following grounds (the last of which was added at the hearing, without objection).
"3.The applicant have leave to appeal from the whole of the decision of the learned Magistrate His Worship Mr Roberts SM given on the abovementioned complaints in the Court of Petty Sessions at Armadale the grounds of appeal being:
(a)That the learned Magistrate erred in finding that parliament had increased the penalties for the offence.
Particulars
(i)The offence is comprised of sections 215 and 217 of the Social Security (Administration) Act 1999 (Cth) and the penalties have not been amended since that Act commenced operation on 20 March 2000.
(ii)Sections 215 and 217 of the Social Security (Administration) Act 1999 mirror sections 1347 and 1350 of the Social Security Act 1991 and those penalties were reduced from a maximum of 2 years imprisonment to a maximum of 12 months imprisonment by an amendment that commenced in 1993.
(b)That the learned Magistrate erred in failing to direct, pursuant to s 20(1)(b) Crimes Act 1914 (Cth) that the Appellant be released forthwith.
Particulars
The learned Magistrate failed to place sufficient weight upon the following matters:
(i)The nature and circumstances of the offence, particularly: A. the fact that the Appellant has been in receipt of social security payments intermittently since 1994 and that this was his first offence; B. the fact that the offence, involving $4525.27, was at the "bottom end" of offences of this type.
(ii)The Appellant's contrition for the offence evidence from: A. his plea of guilty at the first reasonable opportunity; B. his co‑operation in ensuring repayment to the Commonwealth.
(iii)The fact that the Appellant has pleaded guilty to the offence.
(iv)The impact of an immediate custodial sentence upon the Appellant's prospects of employment.
(c)That the sentence imposed by the learned Magistrate was manifestly excessive.
Particulars
The learned Magistrate failed to place sufficient weight upon the following matters:
(i)The nature and circumstances of the offence, particularly: A. the fact that the Appellant has been in receipt of social security payments intermittently since 1994 and that this was his first offence; B. the fact that the offence, involving $4525.27, was at the 'bottom end' of offences of this type.
(ii)The Appellant's contrition for the offence evident from: A. his plea of guilty at the first reasonable opportunity; B. his co‑operation in ensuring repayment to the Commonwealth.
(iii)The fact that the Appellant has pleaded guilty to the offence."
And
"1.The applicant intends to rely on the following additional ground and seek leave to include this ground to be incorporated to the original grounds of appeal
(a)That the sentencing Magistrate erred by referring to a previous debt when in fact the applicant was not charged over any such previous offence and to that extent His Worship's sentencing discretion was miscarried (26 AB). Norris v The Queen [2001] WASCA 68."
By his plea of guilty, the appellant admitted that every fortnight between 13 July 2000 and 22 February 2001, he had falsely stated that he was not working and that he was not in receipt of any income, with the result that he obtained moneys to which he was not entitled.
The appellant submits that for an appeal against sentence to succeed, it must be shown that the sentencing court failed properly to exercise its discretion. Counsel referred to Lowndes v The Queen (1999) 195 CLR 665, R v Tait (1979) 46 FLR 386 and to King v Pavlos, unreported; SJA SCt of WA; Library No 970493; 22 September 1997, per Walsh J at 7.
In Lowndes (supra) the High Court reiterated at 671 ‑ 672 the well‑established principles according to which an appellate court may interfere with a discretionary judgment by a sentencing Judge. The basic principles are set out in House v The King (1936) 55 CLR 499. The appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.
In Tait (supra) the Federal Court of Australia held that the Crown's appeal against sentence was to be decided by the same general principles which apply to an appeal against sentence by a defendant. The appellate court only interfered if it was shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient features of the evidence.
In the present case, learned Magistrate said in the course of his sentencing remarks (at AB 24):
"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, and as we said in relation to you, each time you signed the application form you cheated the public purse. Deterrence, both particular and general, is an important aspect of sentencing."
Counsel for the appellant submitted that his Worship was in error in saying that parliament had increased the penalties for the offence and that the penalty for committing an offence against s 215 and s 217 of the Act has not been altered since the Act commenced operation on 20 March 2000. He pointed out that those sections of the Act mirror s 1347 and s 1350 of the Social Security Act 1991(Cth) the penalties in relation to which sections were increased in December 1991 from 12 months imprisonment or a fine of $2,000.00 or both, to 2 years imprisonment. From September 1993, the penalties were reduced to 12 months imprisonment or a fine of $6,000.00 or both. The reason for that variation seems to be that the legislature intended that the offences be dealt with in courts of summary jurisdiction. Mr Senaratne, on behalf of the appellant submitted that, by providing a greater pecuniary penalty, the legislature
"has left open for the sentencer to impose such pecuniary penalties rather [than] terms of imprisonment. Thus, the learned Magistrate's sentencing discretion appears to have miscarried."
In relation to the second ground of appeal, Mr Senaratne submitted:
"17.The learned Magistrate failed to direct the Appellant be released forthwith pursuant to s 20(1)(b) Crimes Act 1914 (Cth).
18.The learned Magistrate focussed only on the deterrence aspect of the sentencing and failed to consider the rehabilitative prospects of the appellant. Although the need to protect the integrity of the social security system and the need for a firm approach to offences involving such fraud remains as a main consideration, nevertheless, deterrence should not be paramount and other matters, especially rehabilitation, must still be considered.
R v Purdon, SCt of NSW, unreported; 60659 of 1996, BC9700950; 27 March 1997
Kovacevic v Mills (2000) 111 A Crim R 131; [2000] SASC 106 at [37] – [40] per Doyle CJ, Mulligan, Bleby and Martin JJ
Hayward v Hubbard [2000] WASCA 416 at [37]
R v Mitchell, unreported; CCA SCt of WA; Library No 980618; 28 October 1998
19.A sentencing standard cannot dictate a result in every case, or remove the need for consideration of the facts of each case and the application of the relevant considerations to those facts. Considerations of deterrence cannot displace all other considerations, either at the outset or at the conclusion of the sentencing process. All relevant considerations must be taken into account and given due weight.
Kovacevic v Mills (supra) at [32], [35]
Hayward v Hubbard (supra) at [37]
20.While imprisonment is ordinarily upheld for offences of this type, it is preferable not to say that a case must be exceptional before a different approach is taken. There might be circumstances which warrant a more merciful approach in imposing sentence, even though it is not wholly exceptional. A suspended sentence, whether subject to a recognisance release order or a suspended sentence proper, is a substantial punishment.
Kovacevic v Mills (supra) at [45]
Hayward v Hubbard (Supra) at [38], [44]
21.It is doubtful whether it is correct to say that a suspended sentence can only be imposed in exceptional circumstances. It is preferable to say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence a court may impose a sentence of immediate imprisonment. A suspended sentence remains a valuable sentencing option and there are no confined or restricted circumstances in which the option is available.
Cross v Cook [2001] WASCA 242 at [15] per Miller J
Latham v R [2000] WASCA 338 at [33] per Parker J
22.General and personal deterrence could adequately be met by a sentence of imprisonment which is not immediately served. This may be the case whether the offender has previously been of good behaviour (with minor exception in this case), his present employment, his remorse, plea of guilty at the first opportunity and co‑operation with the authorities and the possibility of loosing [sic] employment if her [sic] were to be sentenced to immediate imprisonment. Other relevant factors include the amount involved, the period of offending, whether the offending ceased voluntarily and whether reparation has been made."
In support of his submission that the sentence was manifestly excessive, Mr Senaratne submitted:
"8.A sentence of imprisonment is a sanction of last resort. The learned Magistrate considered that a custodial sentence was warranted having concluded that the appellant continued with his claims for 3 fortnights even after being notified by the department of the over payment (pages 18 and 26 of the AB).
9.A factual circumstance aggravating the offence should be established on the ordinary criminal standard of proof.
Anderson (1993) 1777 CLR 520
10.In this instance the appellant denied the receipt of the notice by the Department and the Crown accepted that it was possible for the appellant to have not received the notice. By this concession the Crown did not seek to dispute the appellant's position by proof of this fact on the required standard of proof. As such the learned Magistrate should not have given undue weight to this factor (AB 18 & 26) and to this extent His Worship's sentencing discretion was miscarried.
11.The circumstances relevant for sentence:
(a)The appellant obtained $4525.27 overpayment of Newstart allowance between 13 July 2000 and 22 February 2001 (pages 22 and 23 AB). This period could be considered relatively short and the amount relatively insignificant in terms of similar offences for which immediate imprisonment is ordinarily upheld.
(b)The appellant failed to declare his casual employment with Foseco Pty Ltd which commenced on 10 July 2000. He earned $9699 during the relevant period (p 23 AB).
(c)The work obtained by the appellant was casual and intermittent. During the period of employment he was not aware that employment would continue. Considering (b) and (c) it cannot be concluded that the appellant's non declaration was only due to greed but not any other need particularly having regard to the total earned as wages.
(d)The offence came to light when the Department liased with the ATO. The Department sent the appellant a notification of this but the appellant did not receive this notification. This fact was not disputed in its entirety by the Crown. The appellant stopped claiming the benefits in February 2001.
(e)The appellant's relatively young age, he is a single man 25 years without a significant criminal record.
(f)The appellant's co‑operation with the authorities and his plea of guilty at the earliest opportunity which signifies his contrition.
(g)His employment as a storeman and the devastating effect of a sentence of immediate imprisonment rendering him to be unemployed.
(h)The appellant has no relevant previous record which was accepted by the Crown and the fact that this being the first offence of dishonesty of this nature.
(i)The appellant's co‑operation to clear the outstanding debt with the Commonwealth and his capacity to meet a pecuniary penalty.
(j)The appellant's offending ceased voluntarily prior to him receiving notification from the Department.
(k)The appellant has served approximately 30 days in custody over this matter and has been able to return to his former employment as a storeman and if he were to be returned to prison the risk of loosing [sic] employment.
(l)The appellant's prospects of rehabilitation having regard to the above.
12.In this instance the learned Magistrate concluded that the appellant's greed was the single motivation for the non‑declaration of his income and thereby little weight was given to other considerations relevant to the sentencing process (AB pages 24 & 25). The learned Magistrate thereby came to the erroneous conclusion that a sentence of imprisonment, to be partially served is the only sentencing disposition.
13.In coming to this decision His Worship took into account matters that were unsubstantiated by the facts.
14.At page 23 of the AB the learned Magistrate referred to the appellant's previous debt between December 1999 and March 2000. His Worship stated that:
' ... but they certainly indicate that you knew that you hadn't declared income to the department.'
15.It appears from this assertion that the learned Magistrate had taken the appellant's previous debt with the department to impute knowledge that he was aware of the seriousness of such a conduct rendering the appellant's conduct in this instance more serious. However there was no material put before the court as to the reasons for the incurring of this debt and the Magistrate erred by taking this debt as a debt due to non‑declaration of income attributing to the appellant's 'mala fides' (17AB). (Although there is reference to an over payment in the statement of material facts, this fact was not relied upon by the Crown and was not read out as part of the facts).
16.'The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences".
Director of Public Prosecutions v Ottewell (1975) AC 642
Norris v The Queen [2001] WASCA 68.
In this instance it seems that the learned Magistrate has given greater weight to a matter the department on its own had not sought fit to proceed with criminal charges and thus has prejudiced the appellant to the extent of not being able to provide with an explanation."
He concluded his written submissions by saying:
"23.It is therefore respectfully moved that the sentence imposed by the learned Magistrate be set aside and substitute therefore a non custodial sentence and in the alternative if the Honourable Court were to consider imprisonment is warranted order the applicant to be released upon entering into a bond pursuant to s 20(1)(b) of the Crimes Act 1914 without serving a further term of imprisonment."
Mr Bevilaqua, for the Director of Public Prosecutions, referred to Weng Keong Chan (1989) 38 A Crim R 337 at 344 per Malcolm CJ and to Australian Coal v Commonwealth (1953) 94 CLR 621 at 627, per Kitto J in support of the submission that it must be shown that the court of first instance has failed to properly exercise its discretion before the appellate court will interfere with its decision. The parties are, therefore, not in disagreement as to the relevant principles to be applied in this appeal.
Mr Bevilaqua submitted that:
"12.The general approach of the courts to sentencing for cases of Social Security fraud has been laid down by the Supreme Court in this State. The following principles emerge:
(a)offence of this type are now prevalent; the offence is difficult to detect and penalties should reflect a concern for the protection of the revenue;
(b)frauds of this kind must be viewed seriously because they threaten the basis of the social security system which is designed to provide financial security for those in the community who are in need; a deterrent penalty is called for.
See Pickett v Fox (1993) 112 FLR 345; R v Rossi and Bowman (1988) 4 WAR 463, Nunn v Kinnon (1988) 4 WAR 459 and the cases cited therein particularly Laxton v Justice (1985) 38 SASR 376; cited in Wilkinson v Morrissey (2000) 115 A Crim R, 98.
13.The Learned Magistrate made the following relevant findings:
(a)the overpayment accrued over a period of seventeen fortnights during which time the Appellant did not declare any earnings to Centrelink; (AB22)
(b)the Appellant was detected by data matching with the Australian Tax Office; (AB22);
(c)the Appellant knew that he was obliged to declare his income due to the fact that he had incurred previous overpayments; (AB23)
(d)the offending involved a repetitive course of conduct in that each time the Appellant signed the form he cheated the public purse; (AB 24 and 26)
(e)the offending behaviour was motivated by greed; (AB26)
(f)the nature of the offence is serious; (AB 24‑25)
14.The Learned Magistrate was entitled, and indeed required to have regard to the principle of general deterrence (AB23, see above at par 12).
15.The Learned Magistrate was entitled to take into account the fact that the offending was motivated by greed. (See Kasianowicz v Picknoll unreptd Murray J, Supreme Court of WA, Appeal No 1187 of 1992, 15 February 1993, and R v Purdon unreptd Court of Criminal Appeal NSW, No 60659 of 1996, 27 March 1997).
16.No restitution or reparation had been made at the time of sentencing.
Ground of Appeal 3(a)
17.The passage referred to states:
'Greed against need is an aggravating circumstance and the small amount does not of itself make an offence trivial. The parliament has demonstrated, by increasing penalties, that it takes a serious view of the breaches of the legislation which concern an over increasing prevalence of fraud, and as we said in relation to you, each time you signed the form you cheated the public purse. Deterrence, both particular and general, is an important aspect of sentencing. As I've said greed against need is aggravating ... '
18.The relevant part of the reasons referred to begins at the top of page 24 of the Appeal Book. In the passage, the Learned Magistrate found that (a) the Courts in Western Australia have said that the offences are prevalent and difficult to detect, (b) the penalties should reflect a concern for the protection of the revenue, (c) the nature of the offence is one of the matters to be taken into account, and (d) the Courts have said that the offences are serious.
19.The Learned Magistrate's reasons should be understood as reflecting the propositions put forward in Nunn v Kinnon at 460, where reference is made to increases in the penalties for social security offences generally to combat losses estimated at $7.7 million in relation to prosecutions for the 1986/7 financial year.
20.The Learned Magistrate was entirely correct in stating that the offences are serious and prevalent.
21.Sections 215 and 217 have not been recently amended to increase the penalty available. The most recent, relevant amendment was to section 1350 of the Social Security Act 1991 (the equivalent section to 215). The amendment decreased the penalty from 2 years to 12 months imprisonment, to ensure that the offence would be dealt with summarily. There was concern that these offences were taking up too many resources when defendants elected to be dealt with on indictment. In the case of more serious frauds use could be made of the Crimes Act provisions that allowed for higher penalties. (See the Social Security Legislation Amendment Bill 1993 Explanatory Memorandum – Act No 36 of 1993, at p 14)
Ground of Appeal 3(b)
22.The Learned Magistrate properly gave consideration as to whether the Appellant should be placed on a recognisance pursuant to section 20(1) of the Crimes Act
23.The Learned Magistrate adequately considered whether to entirely suspend the sentence of imprisonment, and came to the conclusion that while two thirds of the sentence ought to be suspended, it was appropriate for the Appellant to spend some time in prison (AB 26‑28).
24.In determining whether to suspend a sentence of imprisonment there is no deciding factor or list of specific criteria to be taken into account. (See R v Liddington (1997) WAR and R v Power (1971) 131 CLR 626)
25.The Learned Magistrate correctly identified the prevalence of this type of offence and its effect upon the social security system. The Learned Magistrate was correctly of the view that the only appropriate sentence was one of imprisonment.
26.The Appellant knew that he was committing the offences, and nevertheless persisted in the commission of those offences. The offending involved a repetitive series of deceits and was motivated by greed.
27.The plea of guilty carries less weight as a mitigating factor. In these circumstances the defendant had little choice but to accept the case against him. (See Pickett v Fox at 351)
Ground of Appeal 3(c)
28.No error has been identified in the exercise of the sentencing discretion by the Learned Magistrate
29.Having regard to the maximum penalty available and in all the circumstances the sentence imposed by the Learned Magistrate was not manifestly excessive and was within appropriate discretionary range."

The appellant denied, in the course of his plea in mitigation, having received the letter from Centrelink of 21 January 2001 advising him of his obligation to declare correctly his income. His Worship mentioned that fact in his sentencing remarks, and also the fact that the appellant had, since July 2000, been repaying the overpayment to Centrelink at the rate of 10 per cent of his current wages of $300.00 a week. His Worship concluded his sentencing remarks by saying:
"As I've 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 $9,699.00 He certainly knew that he had to notify the department of any change of his circumstances. That he failed to do. The defendant was born in 1976 which makes him, of course, of an early age. In relation to most offences of this type he certainly has no prior convictions. The matter only came to light, not by any notification of the offender himself, but by the department liaising with the Australian Tax Office.
The maximum penalty under the Act is ... jurisdiction. There is a fine of $6,600 or imprisonment of 12 months or both. In relation to this matter, Mr Ralph ... in my view the appropriate term of imprisonment is 9 months. Six months of that will be suspended and for those 6 months you can enter into a bond in the sum of $2,000.00 to be of good behaviour ... .
MS RYAN: A restitution order pursuant to section 21B of the Crimes Act with no fixed rate of repayment. The amount outstanding at the moment, I understand, is approximately $4,525.27.
HIS WORSHIP: There will be a restitution order in that amount. There will be no order as to costs. You can stand down.
MS RYAN: Your Worship, for good behaviour - - was there a period of time for good behaviour?
HIS WORSHIP: Yes. It will be 12 months."
Mr Senaratne drew my attention to 12 other cases of similar offences and to the penalties imposed in respect thereof. Those cases involved various amounts of overpayments and differing circumstances, of course and the penalties differed considerably. I respectfully adopt as appropriate to the present case the remarks of Murray J in Pickett v Fox (1993) 112 FLR 345, where his Honour said, at 350:
"I turn then to the proposition that the sentence as imposed was manifestly excessive. A number of cases were cited to me in an endeavour to support the proposition that the sentence of nine months imprisonment imposed was for the offences committed in their totality, beyond the range of sound discretionary judgment. I do not refer to those cases herein. Each [of] them seemed to me to have relevant points of factual distinction from the circumstances of this case. I found the process of their citation of some general assistance, but I do not consider that regard to those other examples of sentences imposed for social security fraud demonstrated that the global sentence imposed in this case was manifestly excessive."
Pickett v Fox (supra) was a case in which the appellant, a man of 38, supporting seven children and his de facto wife in the last stages of her eighth pregnancy, was sentenced to 9 months' imprisonment with a recognisance release order in the sum of $2,000.00 to take effect after 4 months of the sentence had been served. The overpayment to him amounted to $8,363.44. His appeal was dismissed.
In The Queen v Rossi and Bowman (1988) 4 WAR 463 at 467, the Full Court (Wallace, Olney and Pidgeon JJ) said:
"Reported cases in recent years demonstrate a developing trend towards imposing custodial sentences, even for first offences, in the absence of substantial mitigating circumstances. In Laxton v Justice (1985) 38 SASR 376 Olsen J considered a number of reported cases and distilled the following propositions:
'(i)Offences of this type are now prevalent; the offence is difficult to detect and penalties should reflect a concern for the protection of the revenue;
(ii)Frauds of this kind must be viewed seriously because they threaten the basis of the social security system which is designed to provide financial security for those in the community who are in need; a deterrent penalty is called for;
(iii)It is relevant to regard a continuing series of frauds of this type as increasing the moral blameworthiness of the offenders' deceits by way of contrast with single or short term offences;
(iv)While it may be proper in cases of first offences of this type, accompanied by mitigating circumstances, to impose a fine, nevertheless a custodial sentence may well be appropriate in the case of serious fraud unaccompanied by substantial mitigating circumstances.'
The court has also been provided with particulars of the results of prosecutions in the District Court brought under the Social Security Act and the Crimes Act in respect of this type of offence. A perusal of those particulars gives cause for concern if regard is to be had to the principle enunciated by the Chief Justice of the High Court in Lowe v The Queen (1984) 154 CLR 606 at 610 – 611:
'Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. And it is against this background that the present application for special leave to appeal – one which reveals an exceptionally glaring example of discrepancy in punishment – has to be considered.'
It is our opinion that each of the frauds committed by the respondents in the matters presently under consideration was barefaced and carried out for greed. The increasing prevalence of these crimes and the ease with which they can be committed requires a sentence which will act as deterrent to the community in general to refrain from the commission of such and whilst at the same time not making each of the respondents a scapegoat for the purpose of establishing that criterion. We are of the opinion that the appellant has made out each of the grounds of appeal in each appeal. Whilst it cannot be said that the sentencing judge fell into error in respect of the terms of imprisonment imposed in respect of the separate offences, we are of the view that since each offence was a separate and distinct act of fraud giving rise to the continuation of the respondent's depredation over an extended period, principle requires that the sentences be made cumulative."
In R v Jennifer Rose Purdon, unreported; Court of Criminal Appeal of New South Wales; No 60659 of 1996; 27 March 1997 (Hunt CJ at CL, McInerney J, Donovan J), the following principle was enunciated:
"In the case of a fraud upon the social security system, a custodial sentence is to be imposed unless there exist very special circumstances justifying some lesser order. The rationale stated for that rule is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It also reflects a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer."
In the present case, the appellant had perpetrated at least 12 separate frauds upon the social security system, each of which attracted a maximum penalty of 12 months' imprisonment. If his Worship was wrong in saying that the legislature had increased the relevant penalties for the offence, as seems to be the case, it is not apparent that that mistake had any significant effect upon the sentence which his Worship did impose and I am not persuaded that the learned Magistrate imposed a sentence that was manifestly excessive in all the circumstances.
In the result, I dismiss the appeal.