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

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,

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

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

Corrective Services officer directs.

40
50

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

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

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,

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rosales v Carstens

Details

AGLC: Rosales v Carstens [2004] QDC 579
Case: [2004] QDC 579
Decision Date: 6/09/2004

CaseChat Overview and Summary

In the case of Rosales v Carstens, the appellant, Evelyn Daysi Rosales, appealed against her sentence imposed by the Magistrates Court. The dispute arose from Rosales' conviction for social security fraud, where she had received overpayments amounting to approximately $24,000 over a period of 28 months. The primary legal issue before the court was whether the sentence imposed by the Magistrate was appropriate in the circumstances. The court had to consider the gravity of the offence, the appellant's personal circumstances, and the potential impact of a custodial sentence on her family.

The court held that while the offence of social security fraud warranted a significant penalty, the Magistrate had not adequately weighed the impact of a custodial sentence on the community and the appellant's personal situation. The court noted that Rosales had a young child and a severely disabled mother, both of whom depended on her care. Given these circumstances, the court found that a custodial sentence would impose an undue burden on the appellant's family. Instead, the court considered an intensive correction order to be a more suitable penalty, as it would allow Rosales to serve her sentence while maintaining some degree of personal and professional responsibility.

The court allowed the appeal, setting aside the original sentence and imposing a 12-month intensive correction order with stringent conditions. These included mandatory reporting, community service, participation in counselling and programs, and restrictions on travel and residence. The court also ordered Rosales to repay the sum of $16,458.84 to the Commonwealth. The appellant was warned that any breach of the order would result in immediate imprisonment for the remaining term of the sentence.

Orders