Roger David Smith v Department of Social Security No. SCGRG 93/1202 Judgment No. 4120 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4120

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeal against conviction - social security offences - sentence of immediate imprisonment for 6 months imposed manifestly excessive - magistrate failed adequately to take into account appellant's antecedents and circumstances - sentence imposed on what has now proved to be an incorrect factual basis - sentence imposed inappropriate when considering nature and gravity of offending.

HRNG ADELAIDE, 18 August 1993 #DATE 18:8:1993
Counsel for appellant:     Mr B Nitschke
Solicitors for appellant:    Dixon Gallasch
Counsel for respondent:     Mr P Edson
Solicitors for respondent: Director Of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against a single sentence imposed by a stipendiary magistrate in respect of the convictions of the appellant of 10 counts of making false statements in connection with claims for Job Search Allowance and one count of knowingly obtaining an Unemployment Benefit, part of which was not payable. He was imprisoned for six months. 2. The appellant appeared before the learned magistrate in person and entered timely pleas of guilty. It does not appear what personal background details were obtained from him at the time as no transcript has been forthcoming. 3. The affidavit of the prosecutor reveals that the learned magistrate was informed that all, save one, of the offences were committed by virtue of the fact that the appellant failed to declare earnings from employment as a casual fruit picker. The court was informed that he was in receipt of an unemployment benefit and job search allowance at the rate of $688.30 per fortnight and, at times, over a five month period did not disclose casual earnings ranging from $50 up to as much as $420 gross per week. In the case of one offence his earnings were such that he was not entitled to any benefit at all. In all other instances he was entitled to only a part benefit. 4. The court was further told that the situation was revealed on 3 December 1991 by means of a verification of earnings with the appellant's employer. When interviewed on 17 June 1992 the appellant made some admissions. 5. It was made to appear to the learned magistrate that he received over payments totalling $2,733.61 of which $1,721.88 had been recovered by garnishee action by the time at which the appellant was sentenced. 6. On the hearing of this appeal evidence was admitted by consent to the effect that the overpayments to the appellant were probably very much less than originally calculated because, although he cashed employer cheques for $2,733.61, the proceeds were shared between the appellant and other persons with whom he was working as a casual picker. That information was not before the learned magistrate. It may well be that full reparation has now been made. 7. The appellant is a married man aged 41 years. His wife and the youngest two of his three children are dependant upon him. He has no relevant antecedent record. He is of general good character and work record (when work is available) and an employer reference was placed before the learned magistrate. 8. Although, during 1991-92, he had recurring periods of unemployment he is currently in more or less steady employment as a block hand at Loxton. If he actually serves a term of imprisonment he will almost certainly lose his employment and, in the present very depressed current situation in the Riverland, he would have poor future re-employment prospects. 9. In imposing sentence the learned magistrate appears to have focused his attention almost solely on the factors of general and personal deterrence. He pointed to the prevalence of the offence and its seriousness in relation to depleting funds available to legitimate needy causes, causing an extra unfair burden on the taxpayers and the potential divisiveness caused by offences of this type tending to cause other members of the community to look on legitimate recipients of benefits with suspicion. 10. These considerations led him to impose an immediate custodial sentence. 11. The appellant contended that the sentence in question was manifestly excessive in that it did not have regard to the other important factors required to be taken into account in the sentencing process and the very considerable hardship which would result to the appellant, his wife and his dependant children - hardship, it was agreed, which was disproportionate to the appellant's criminality and which, paradoxically, would give rise to a major additional legitimate claim for social security benefits. It was also imposed on what now appears to be an incorrect factual base. 12. There can be no doubt, on the well known authorities, that an appellate court will be slow to interfere with the exercise of a sentencing discretion. It will only do so where either manifest specific error is demonstrated or the sentence, on the face of it, is, patently, so severe as to give rise to the inevitable inference that something must have gone wrong in the sentencing process. 13. In this case such was the period and nature of the offending and the amount improperly obtained that the imposition of a significant custodial sentence was undoubtedly called for, but having regard to the information now before me the length of the sentence actually imposed appears to be outside that which is appropriate to the gravity of the offending. 14. Having regard to the prior good record of the appellant, his timely plea and the draconian effect which immediate service of a custodial sentence would have on the appellant and those dependent on him - to say nothing of the inevitable indirect impact that it will have on the taxpayer - coupled with the facts now known to me I cannot accept that the justice of the case required immediate service of a custodial sentence. 15. I consider that the sentence was manifestly excessive. I allow the appeal, reduce the sentence to three months' imprisonment and order that, upon entry into a recognisance of $200 to be of good behaviour for a period of two years, the appellant be released forthwith.