Smith v Gibson
[1988] TASSC 23
•11 March 1988
TASSC [1988] 23
CITATION: Smith v Gibson [1988] TASSC 23; A8/1988
PARTIES: SMITH, Barry John
v
GIBSON, Paul Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 140/1985
DELIVERED ON: 11 March 1988
JUDGMENT OF: Underwood J
Judgment Number: A8/1988
Number of paragraphs: 25
Serial No 8/1988
List "A"
File No LCA 140/1985
BARRY JOHN SMITH v PAUL CHARLES GIBSON
REASONS FOR JUDGMENT UNDERWOOD J
11 March 1988
The applicant pleaded guilty to 32 charges of presenting a document which was false in a particular, contrary to the Social Security Act, 1947 (Cth), s138(1)(d) (as the Act was then numbered). Each fortnight, during a continuous period of 60 weeks, the applicant submitted a claim for continuation of unemployment benefits to the Director of Social Security. On each form the applicant stated that, during the relevant period, neither he nor his wife had worked on a full time basis. Each statement was false as the applicant's de facto wife had been in full time permanent employment with Stanley Tools throughout the whole period.
The applicant was sentenced in the Court of Petty Sessions to five days' imprisonment upon each matter of complaint. The sentences were ordered to be served cumulatively so that an effective total term of imprisonment of 160 days was imposed. The applicant seeks a review of those sentences upon the single ground that together, they constitute a sentence that is manifestly excessive in all the circumstances.
The amount over paid by the Department of Social Security by reason of the false statements totalled $9,009.40.
By way of mitigation, the learned magistrate was told that the applicant was aged 42 years and that he had lived with a woman as man and wife, although not lawfully married, for approximately 15 years. Of this relationship, there are two teenage school children. The applicant had been in continuous employment as a carpenter until some little time before the commission of the first of the offences. Due to a down turn in the building industry, he became unemployed and remained so for approximately three years. He was still unemployed when he appeared before the learned magistrate.
The applicant’s wife gained full time employment some time after the applicant first became unemployed, but the applicant did not disclose this change of circumstance to the Director of Social Security. Instead, he chose to supply a false answer to the question concerning employment in the claims he made for the continuation of unemployment benefits.
Also by way of mitigation it was put to the learned magistrate that, for a very considerable period of time, the applicant and his de facto wife had been living in strained emotional circumstances. The applicant claimed that his wife was involved with other men and that, when she got work, she made no contribution to the household expenses and left it to the applicant to provide for the family on the unemployment benefit. The applicant wanted to keep his family together and it was claimed that this was the motivation behind the commission of the offences. The following is an extract from the submission of counsel for the applicant on the hearing before the learned magistrate:
"So it's essentially in those circumstances that I submit that this was not blatantly a selfish lot of offences committed by this defendant for his own selfish gain, but they were committed essentially out of a genuine need – essentially he was separated from his wife, although she continued to live within the matrimonial home, but essentially he was separated from her, she was making no contribution from the income she was receiving, and, as a result, my client had no income from which to maintain the home and meet the family commitments, and, as a result, he's come before this court and pleaded guilty to having committed these offences."
The applicant was convicted twice in 1960 and once in 1963 for offences of dishonesty. Since then he has been convicted on many occasions for offences against the Traffic Act and Regulations and the Road Safety (Alcohol and Drugs) Act, and on more than one occasion before the commission of these offences, been given the benefit of a suspended sentence of imprisonment.
After considering overnight the submissions made to him the learned magistrate said, in my view quite properly:
"Now of course it's notorious that social security frauds are rampant, and I think it behoves the court, when a serious example of it comes before the court, to impose such a penalty as to make it quite clear to any person who is tempted to defraud the public treasury of the view the courts will take. But, of course, that's not the one and only consideration, one has to look at the personal circumstances of the person who has offended, which I have done and which were fully put before me by your counsel yesterday."
The learned magistrate then referred to the personal circumstances of the applicant. Just before the learned magistrate made his comments on passing sentence, counsel for the applicant made a further submission, which was accepted by the prosecutor that, had the applicant and his wife been living separately and apart and had the children in that circumstance stayed with the applicant, the applicant would have been entitled to receive a supporting parent's benefit which was then payable at the rate of approximately $200 per fortnight. If he had been paid this benefit then the amount over paid by reason of the false answers would have been $2,560 and not $9,009.40.
The learned magistrate referred to this matter by saying:
"Arguably it could be said, and quite correctly it could be said, that had you arranged your affairs in a different way you wouldn't be before the court today and, from which it flows, it could be said that you've only defrauded the Commonwealth of $2,560, but even that is a substantial amount."
On the hearing of the motion to review, learned counsel for the applicant did not argue strongly that this was a case where a term of imprisonment was inappropriate but submitted that the order that the sentences be served cumulatively resulted in a sentence which was manifestly excessive having regard to the totality of the criminal behaviour of the applicant.
By consent, I was handed a list which set out the number of persons convicted in this State of the same or similar offences and the sentences imposed thereon from November 1985 until February 1988. This list shows that 174 persons were so convicted during the stated period and demonstrates the validity of the learned magistrate's observation that the offence is prevalent. Of those 174 persons, only seven were convicted of more offences than the applicant; the highest number being 40. Only three offenders were convicted of offences involving a total sum in excess of $9,000. A perusal of the sentences imposed discloses that this sentence, just short of 23 weeks, is within the range of sentences imposed in this State for offences of this nature. The propriety of using such statistics on a review of sentence was discussed by the Court of Criminal Appeal in R. v O‘Brien CCA 46/1987.
In Fisher v Gibson, Neasey J, 48/1986, the court was concerned to impose sentence upon convictions for a number of offences against the Social Security Act, s138(1)(d). Neasey J considered that deterrent was an important part of the sentencing process for offences involving Social Security fraud. His Honour referred to a number of matters including:
1 The difficulty of detection.
2 A legitimate concern to protect the revenue.
3 Prevalence of offences of a similar nature.
4 The fact that the offences "threatened the basis of the social security system".
5 The commission of a series of the same offences increases the moral blameworthiness.
However, his Honour observed that such matters do not place offences of this kind in a special category of fraud standing apart from other fraudulent practices whereby monetary gain is unlawfully obtained and, that the circumstances of each offence and the offender must be taken into account. Amongst such circumstances I would include whether the offences were committed out of need or greed, the amount involved and whether any planned or elaborate fraudulent system was involved.
This approach to the question of sentence in cases of Social Security fraud was taken by the South Australian Supreme Court in Laxton v Justice (1985) 38 SASR 376; Taormina v Cameron (1980) 24 SASR 59; Scott v Cameron (1980) 26 SASR 321; by Cox J in Wanders v Gibson 25/1986 and by myself in Williams v Gibson 50/1986.
R v Scherf (1985) 39 SASR 45 was an appeal to the Full Court of South Australia. The appellant pleaded guilty to 10 charges of presenting a false document contrary to s 138(1) of the Social Security Act. He asked that a further 17 similar offences be taken into account. Thus, the judge at first instance was concerned to impose sentence with respect to 27 claims for payment of unemployment benefits involving a total sum of $9,000. Like the present applicant, Scherf falsely stated that his wife was not working during each relevant period. Like the present applicant, Scherf was "living under the same roof as his wife and eating at the same table (although) relations between them were so bad that it is easy to believe that he received no financial benefit from her earnings apart from his bare upkeep." Like the present applicant, he had prior convictions for dishonesty many years earlier but unlike the present applicant, he committed the offences out of greed and not out of need. He spent his money on alcohol and "drunken infidelity". A sentence of two years' imprisonment was not interfered with. White J said at p50:
"Neither Scherf's personal history nor his motive for offending called for reduction of the head sentence. He offended through greed, not need. A substantial term of imprisonment was called for. I would not interfere with the term of two years’ imprisonment which serves as a deterrent to him against further offending (notwithstanding his present intention to reform himself) and a deterrent to the many others who are only too ready to cheat the public purse. A strong deterrent is called for in appropriate cases." [My emphasis].
The principles expressed by the Full Court in Scherf's case were applied by Matheson J in Reimann v Robinson, Supreme Court of South Australia, unreported, 25 November 1987. With respect to 20 offences committed over a period of 8 months and involving $5,400, his Honour set aside a fine of $200 as inadequate and in lieu, imposed a sentence of three months' imprisonment. His Honour then released the respondent upon condition that she be of good behaviour for a period of five years and make full restitution.
In Buchanan v Kenny, Supreme Court of Western Australia, unreported, 20 July 1987, Pidgeon J allowed an appeal against sentence imposed with respect to 26 counts committed over a period (not continuous) of two years and involving a total sum of $3,489.85. At p4 of his reasons for judgment his Honour said:
"I do not consider any authority is needed to state that this offence is in itself one of seriousness, particularly as it was repeatedly carried out over a long period for gain in the way I have said. That has been said by the courts many times."
It appears that Laxton v Justice (supra) and Taormina v Cameron (supra) were referred to during the course of argument although not made the subject of express comment in his Honour‘s reasons for judgment.
In R. v Costica Gruia unreported 3 December 1986, the Victorian Court of Criminal Appeal considered a sentence imposed on six counts of conspiracy to defraud the Commonwealth contrary to s86(1)(e) of the Crimes Act (Cth) 1914. The fraud related to the obtaining of unemployment and other benefits. Although the criminal culpability in that case was much greater than in the present case it may be noted that Young CJ said at p3:
"The learned trial judge, when passing sentence, accepted the proposition that the type of offence is one in which the component of general deterrence needs to be given special emphasis by a sentencing judge, and I think that his Honour was correct in doing so."
In R. v Jackson (1972) 4 SASR 81 the joint judgment of the Full Court referred to the task of a sentencer when required to deal with Federal offences in the following way at p91:
"1Above all, the sentencing judge exercises his discretion in a manner appropriate and just in the circumstances of the particular case.
2He will, when exercising State jurisdiction, give effect to sentencing policies expressed by superior courts in his own hierarchy.
3He will, when exercising Federal jurisdiction, give effect to sentencing policies expressed by superior courts in his own hierarchy particularly if the policies have been expressed with respect to Federal offences.
4He will, when exercising Federal jurisdiction, remember that Australia is one country and that policies laid down elsewhere in Australia by superior courts, although not technically binding on him, ought to receive a very great attention by him, as it is desirable that there should be similarity of approach by sentencing authorities with respect to Federal offences."
In my view, it would appear that the Australian approach to sentencing in cases of Social Security fraud differs in some respects from the approach taken by the courts in the United Kingdom. In Livingstone Stewart & Other Appeals and Applications (1987) 85 Cr App R 66 at p69 the Court of Appeal expressed the view that, in the absence of special features, the deterrent effect of any penalty imposed with respect to offences involving social security is unlikely to be great. It is to be noted that the United Kingdom legislation provides for a pecuniary penalty and/or a term of imprisonment not exceeding 3 months. The Social Security Act, prior to its amendment in October 1983, prescribed a maximum penalty of $500 or 6 months imprisonment. By the amendment the maximum penalties were increased to $2,000 or 12 months imprisonment.
Although the sentences under review, together with the order that they be served cumulatively, amount to a total sentence at the top end of the range of sentences imposed in Tasmania for offences of this kind, it cannot be said that together they amount to a sentence which is manifestly excessive. Although the applicant's strained relationship with his wife, her failure to contribute to the household expenses and the desire of the applicant to provide for his family are circumstances in mitigation of penalty, they are not of sufficient weight, when balanced with the need to impose a sentence with deterrent effect, to make the sentence imposed by the learned magistrate manifestly excessive. The applicant, who co–operated with the police, clearly admitted that he was aware of the moral culpability of his actions. His conduct amounted to a consistent course of fraud over a period in excess of a year and the amount involved was considerable. I do not consider that the submission concerning the amount the applicant would have received had he and his daughters been living separately and apart from his wife has much weight. The fact of the matter was that the applicant was not, to his knowledge, living in circumstances which would have entitled him to payment of a higher benefit.
On behalf of the applicant it was submitted in the alternative, that error lay in a failure to suspend the execution of part of the sentences. In my opinion no such error is apparent. The applicant was a mature person and his previous convictions (albeit for dissimilar offences) and the suspended sentences imposed thereon gave no promise that suspension of the execution of any part of these sentences was appropriate.
The motion to review will be dismissed.
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