Rosales v Carstens

[2004] QDC 579

[2004] QDC 579

DISTRICT COURT

APPELLATE JURISDICTION

CHIEF JUDGE WOLFE

No D389 of 2004

EVELYN DAYSI ROSALES	Appellant
and
RAYMOND IAN CARSTENS	Respondent
TOWNSVILLE ..DATE 06/09/2005
JUDGMENT

06092005 T28/HAC M/T TSVDC3/2005 (Wolfe CJDC)

HER HONOUR: I am not inclined to allow into evidence the	1
very high crossbar set by R v. Maniadis (1997) 1 Qd R 593 and
report of Alistair Campbell. I do not think it reaches the do find that the Magistrate erred mostly because, with a 12

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month maximum, he could have imposed an intensive correction order which will impose an enormous burden on the appellant.

Secondly, a 12 month intensive correction order is enormously difficult, as the Court of Appeal, particularly Williams J,

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has in the past observed. It involves a person having to jeopardy of being locked up in a community residential
report at least twice a week or receive visits twice a week;
being prohibited from leaving Queensland or staying out of

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facility for up to seven days at a time if the authorised

Corrective Services officer directs.

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2 JUDGMENT 60

06092005 T29/RTN M/T TSVDC3/2005 (Wolfe CJDC)

A person can be ordered to perform up to 12 hours a week	1
community service and/or programs and counselling, and in many cases they do have to do up to 12 hours a week unpaid community service. I most certainly am of the view that the fact of a child being in her sole care and custody is not

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sufficient to save the appellant from a custodial sentence.
See Queen v. D'Arrigo ex parte the Attorney General of

Queensland [2004] QCA 399.

In this case, as the learned Magistrate noted, the Social

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Security fraud, as it is known, amounted to about $24,000 in a bit over over a period of 28 months. What happened was that the appellant received payments to which she was not entitled during the period 11 January 2001 to 13 May 2003 and was later charged with two offences in respect thereof. First of all,

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under section 215 of the Social Security Administration Act
1999 as it then was, which provided a penalty of imprisonment
up to 12 months. And secondly, in respect of some of the
payments, she was charged under section 135.2 obtaining

financial advantage under the Criminal Code 1995, and in those

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respects she pleaded guilty too. The total amount overpaid
was almost $25,000. I am told that the sum now owing is just
over $16,000. The repayments have been made by reason of the
procedures that apply in cases such as these so that the

pension payable to the person is reduced by an amount, in this

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case $66 per fortnight. She receives just over $300 per week

now.

3 JUDGMENT 60

06092005 T29/RTN M/T TSVDC3/2005 (Wolfe CJDC)

Her mother is on a disability pension. The appellant was aged	1
32 at the time of sentence. Having come to Australia at age 13 as a refugee from El Salvador I am told she received a degree in community development from the Victorian University of Technology, that is, I am told, something like a social

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work degree. With that she worked at Scope in Victoria, which
is an institution providing assistance to cerebral palsied
adults. Her only other relative, apart from her very young
son who at the moment is in year 2 at a Townsville school, is

her mother who suffers grievously from rheumatoid arthritis.

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She suffers so badly that she could not care for a child of the solicitor who appeared for the appellant at that sentence submitted that there were obvious difficulties if she were to
the age and the obvious abilities of children of his age.

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be imprisoned; in summary these are that there would be no
other family members to care for her mother or son here. I
interpolate her mother is here in Townsville because of her
condition; the family moved from Victoria a year prior to

sentence, that is, in about September or October 2003. It is

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also clear from the transcript that the learned Magistrate
asked questions about what care was required of the mother and
it was submitted that the mother had very little English; that
the appellant did all of the cooking; that her mother reheated

a meal at lunch time while the appellant was at work; that the

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mother was unable to do any shopping because she was unable to
take weight-bearing in her hands and all other family members
were in Victoria.
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It was obvious that the learned Magistrate was concerned, as	1
he asked, "There's only friends here and no immediate family, or extended family." He was advised that having been here only for about a year the friendships were limited and the child would have to be cared for by friends or relatives in

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the south if she spent any time in custody. The transcript
shows that is what the Magistrate observed.

This was a case where the appellant, as the learned Magistrate noted, had not deliberately lodged a false declaration, but by

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her plea of guilty she knew that sitting back and receiving
benefits while she was earning money was unlawful. Over the
period that she was overpaid - almost $25,000 over 28 months -

she earned about $80,000.

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When she was contacted first by the department in May 2003 she indicated in such a way as to allow departmental officers to believe that she had only been earning amounts to take her outside the eligibility for the pension between March 2003 and May 2003. On the other side, although she did not make full

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admissions she did participate in a record of interview and
she did plead guilty.

There are numerous authorities which indicate that for a fraud of this amount over that period the offender is looking at a

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short term of imprisonment and some others where for various
reasons that person has not had to serve a term of
imprisonment. In my view, taking into account all the
circumstances to which I have referred and in having regard to
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the concise and very clear sentencing remarks of the learned	1
Magistrate - and one takes into account too what he observed or asked about in the course of the sentencing hearing; I have no doubt he took all those things into account - but in my view he did not give sufficient weight to the cost to the

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community of 10 or 12 weeks' imprisonment for the appellant;
that imprisonment in the community provides, in her
circumstances, a very heavy penalty which is a grave
punishment and which would certainly act as a deterrent, in my

view.

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Cases of social security fraud cannot be tolerated, and I in my view, taking into account all the relevant
refer particularly with the observations of Justice Davies and

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circumstances, a custodial sentence was not called for.

...

HER HONOUR: The appeal is allowed. I set aside the sentence

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and I will sentence you to 12 months' imprisonment, to be
served in the community on the conditions set out in section
114 of the Penalties and Sentences Act. Now, before I do I
want to make this perfectly clear to your client that if she

commits any offence she will be brought back here and she will

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have to serve - if it is a serious offence - the balance in
imprisonment. Does she understand that if she breaches a
condition and is found to have breached the order, if she did
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that next month if it was serious she could go to prison for	1
11 months. There are no remissions.
MR WALTERS: Yes. She instructs me that she understands.

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HER HONOUR: It is far tougher than a wholly-suspended
sentence. You are in real jeopardy for the next 12 months.

Now, listen while I go through the terms again.

You must not commit another offence during the period of

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the order, the 12 months;

You must report to the authorised Corrective Services officer at Townsville within 24 hours;

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You must report to and receive visits from the authorised while the order is in force;

You must take part in counselling and satisfactorily

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attend other programs as directed by the Court or an
authorised Corrective Services officer during the period

of the order;

You must perform in a satisfactory way community services

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that an authorised Corrective Services officer directs

during the period of the order;

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06092005 T31/LB M/T TSVDC3/2005 (Wolfe CJDC)

That means you go when you are told to go, where you are told	1
to go and you work as you are told to work. You do not argue, you do not quibble, you just do it. Do you understand?
APPELLANT: Yes, I do.

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HER HONOUR: Secondly, they have heard every excuse in the book.

You must, during the period of the order as I told you

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before if the authorised Corrective Services officer
directs, reside at a community residential facility for
periods of not more than seven days at a time as directed

to do so;

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You must notify the authorised Corrective Services officer of every change of your place of residence or employment within two business days of a change occurring.

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That means if you move your address, if you get a job, lose a job, change a job, you must tell them within two business days. They must know where to find you every minute of the next 12 months. Do you understand?

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APPELLANT: I do.

HER HONOUR: If you do not a warrant can be issued and have no
doubt you will be brought back here and from the date of the
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breach if it is serious you will be sent to prison for the	1
balance of the term. And you do understand that, do you? No remissions, no early release. With intensive correction orders you do the lot if you breach from the time of the breach.

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I am going to also order that you undertake a cognitive skills program as directed by the officer and that is to help you in the ways I spoke of before.

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Now, this order can be amended or revoked. If your circumstances were to change horrifically, a huge change, if something very serious happened, you can come back here and apply to have the terms of the order varied or revoked. The authorised Corrective Services officer and the Director of

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Public Prosecutions can also apply to have the terms varied or revoked.

And I think I did not tell you formally that:

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You must not leave Queensland or stay out of Queensland unless you get permission first and;

You must comply with every reasonable direction of the authorised Corrective Services officer.

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Can you comply with those conditions?

APPELLANT: Yes.
06092005 T31/LB M/T TSVDC3/2005 (Wolfe CJDC) 9 JUDGMENT 60

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HER HONOUR: Well, I have decided to set that appeal aside because, as I said, the learned Magistrate did not give sufficient weight to all factors for the benefit of the community.

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I sentence you to imprisonment for 12 months to be served by way of an intensive correction order under section 112 of the Penalties and Sentences Act containing the terms set out in section 114(1) and the special condition to which I referred

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about the cognitive skills program. Convictions are recorded

in respect of each offence.

...

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10 JUDGMENT 60

06092005 T32/DB M/T TSVDC3/2005 (Wolfe CJDC)

HER HONOUR: I also order that you repay to the Commonwealth	1
the sum of $16,458.84.
MR WALTERS: Your Honour, there is the matter of the two days in custody prior to bail being granted.

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HER HONOUR: I know there were, but I am not going to do anything about that; that is part of her punishment.

...

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HER HONOUR: I am not going to give her the benefit of that, she can carry that with her. If she is ever tempted to breach in the slightest way the intensive correction order she can think about those two days.

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11 JUDGMENT 60