Smith v Maine
[2006] TASSC 106
•11 December 2006
[2006] TASSC 106
CITATION: Smith v Maine [2006] TASSC 106
PARTIES: SMITH, Damien
v
MAINE, Jeanette Eileen
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 10/2006
DELIVERED ON: 11 December 2006
DELIVERED AT: Burnie
HEARING DATE: 28 November 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – False statements – Social Security benefits.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: I M Arendt
Respondent: S G Wright
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Crisp Hudson & Mann
Judgment Number: [2006] TASSC 106
Number of paragraphs: 12
Serial No 106/2006
File No LCA 10/2006
DAMIEN SMITH v JEANETTE EILEEN MAINE
REASONS FOR JUDGMENT SLICER J
11 December 2006
The respondent was convicted on seven charges of making a false statement in connection with a claim for social security benefits contrary to the Social Security (Administration) Act 1999 (Cth) ("the Act"), ss212 and 217. The Act relevantly provides:
"212 ¾ False statement in connection with claim or hardship request
(1) A person contravenes this subsection if:
(a)the person makes a statement; and
(b)the statement is false or misleading; and
(c)the person is reckless as to whether the statement is false or misleading; and
(d)the statement is made in connection with, or in support of, the person's or any other person's:
(i) claim for a social security payment under the social security law; or
(ii) …;
(iii) …
(2) For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:
(a)the element that a payment is a social security payment under the social security law;
(b)…;
(c)…".
"217 ¾ Penalty for contravention of Division 2
A person who contravenes a provision of Division 2 is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months. "
In this case, the plea of the respondent was to the reckless making of answers. The offences were committed between April 2002 and July 2003, involving an amount of approximately $10,000. The respondent had recklessly made statements to the effect that her husband was not in remunerated employment, repeated that representation when interviewed by officers of the department in January 2003 and again after that date. The offences were serious, committed over a lengthy period and repeated.
The order eventually made by the Court was one in accordance with the Crimes Act 1914 (Cth), s19B, namely:
(a)That she be discharged on the complaint without conviction.
(b)That she enter into recognizance to be of good behaviour for a period of three years and make reparation in the sum of $800 by instalments.
(c)No surety was required. The amount of the recognizance was in the sum of $2,000.
The notice to review is upon the grounds that:
"(1)The Learned Magistrate erred in law in imposing a sentence which was manifestly inadequate in all the circumstances.
(2)The Learned Magistrate erred in law in exercising his discretion in applying Section 19B(1)(d) of the Crimes Act1914 and discharging the respondent on the complaint without conviction upon her entering into a recognizance in the sum of $2,000, without surety."
It is difficult to discern the basis of the appeal. The applicant did not provide the Court with the basis of comparison for penalties imposed on like matters, nor indicate any comparable range of appropriate sanctions. Nor was any specific error identified or articulated. The applicant's case is that simply the order as imposed was insufficient. When pressed during the course of submissions, counsel for the applicant conceded that the error claimed was the failure to record a conviction.
Given that it is an appeal by the prosecution, some form of error should be manifest either by reference to the range of penalties or error readily discerned. The grounds as formulated and articulated are not the vehicle for a statement of principle sought by the applicant.
This Court has been able, during the course of argument, to discern the grievance claimed by the applicant.
The Act, s212, provides for the offence of making a false statement in connection with a claim. It provides that a person who makes a statement which is false and misleading, and when the statement is made recklessly in support of a claim for social security, a person is punishable on conviction by imprisonment for a term not exceeding 12 months. The appeal, as argued, really concerned the use made by the learned magistrate and the weight which he gave to medical evidence provided on behalf of the respondent. The complaint alleging contravention of the Act was dated 22 July 2005. A plea of not guilty was entered on 13 October and the matter adjourned for hearing. On 14 December 2005, counsel for the respondent raised questions of whether the respondent was fit to plead. The note made on the record of proceedings sheet states that it was adjourned for mention "investigation and special hearing as to the defendant's fitness to plead (undecipherable) be needed". The order made was that the defendant be psychiatrically examined for the purpose of determining her fitness to stand trial by a psychiatrist nominated by the prosecution. It was not made clear, on the hearing of this appeal, whether the applicant had made use of this order. On 13 February 2006, the issue of fitness to plead came before the court. By then the court had provided to it two letters from Dr K McConnell, a consultant psychiatrist, dated 28 November 2005 and 18 January 2006 respectively. The letter or report of 28 November 2005 stated:
"1I am a consultant psychiatrist who has been treating Jeanette Maine for 24 months.
2Ms Maine has two major psychiatric diagnoses, (a) severe recurrent major depression with melancholic features and poor inter-episode function (b) panic disorder with agoraphobic tendencies.
3These diagnoses have been established by history, mental status examinations and treatment response over two years and confirmed by corroborative history from Ms Maine's General Practitioner. There is no blood test or Xray which may establish these diagnoses.
4The functional impact includes severely reduced concentration and impaired memory, plus reduced mobility due to agoraphobic tendencies.
5In the context of court proceedings involving Ms Maine giving incorrect data on Centerlink forms, it is highly likely her concentration was so impaired by depression and anxiety that she was not deliberately giving false information.
6Ms Maine has been unable to recount the charges and their meaning so I have only obtained the facts from her solicitor.
Specifically
I do not consider Ms Maine understands the charges; does not understand the consequences of pleading; and struggles to instruct her solicitor.
I consider there is reasonable doubt that Ms Maine is fit to plead."
The letter of 18 January 2006 provided little additional information except to repeat the "grave concerns" of the psychiatrist about the respondent's "fitness to plead". However the consultant psychiatrist suggested that the respondent's "interest would be best served by seeing a specialist forensic psychiatrist with the specific objective of assessing her capacity".
On 13 February 2006, the matter was further adjourned until 17 March when counsel for the respondent sought leave to change the plea to one of guilty. On 13 February 2006, counsel for the respondent told the court that the prosecution did not accept the accuracy of the reports from Dr McConnell who had been killed in an accident shortly after the date of the January letter. It is difficult from a reading of the transcript of 13 February 2006 to understand what were the respective positions of counsel for the parties. Claims that the prosecution had or had not reconsidered its position, explanation as to why the respondent could not obtain a second opinion, reference made to the original order, and various other matters were raised and canvassed. However on 17 March 2006, counsel for the respondent told the court:
"I have satisfied myself by questioning Ms Maine that she understands what in fact the charges are and the resulting prospects of penalty. On that basis … I'm instructed to seek leave to alter the plea to a plea of guilty to the seven counts that are on the complaint … and ask that that plea be accepted through counsel."
Counsel for the applicant then stated the prosecution facts to the court, followed by the plea in mitigation, in the course of which counsel sought to persuade the learned magistrate that the matter could be disposed of by way of the Crimes Act, s20BQ. That section, appearing in Div8 of the Act, provides for the summary disposition of persons suffering from mental illness or intellectual disability. The learned magistrate rejected the submission and determined that it did not apply in the circumstances of the case. He determined, consistent with his view of a decision of Gray J in the Supreme Court of South Australia in Morrison v Behrooz [2005] SASC 142, that the appropriate provision was s19B, rather than 20BQ. The learned magistrate then proceeded to pass sentence in the following terms:
"Mrs Maine, you have pleaded guilty to these seven charges which I have already described. Your behaviour was reckless. The questions which you answered falsely were not difficult questions. You basically just ticked the boxes without giving any thought to the consequences. The consequences were, of course, that you received nearly ten thousand dollars more in benefits than you were entitled to. You have no prior convictions, and I accept that it is out of character for you to behave in a dishonest way.
As I said earlier, I take into account all those matters referred to by Mr Wright and Dr McConnell in the medical report. I also take into account the matters under s16A (2) of the Crimes Act that I am obliged to take into account. These types of offences are serious and prevalent – they are easy to commit. They are, however, becoming easier to detect and people who do this should be aware that they will eventually be detected.
The Courts have stressed the need for strong deterrent penalties to be imposed in cases such as these. There is a need to send a message to others that this sort of criminal conduct has serious consequences. In your case, however, I believe that there are strong factors calling for a more individualist approach to sentencing and not one where the interests of justice require a conviction.
I have referred to these matters earlier and I don't need to repeat them. They are matters which in my view, justify me dealing with your case under S19B of the Crimes Act. In my opinion, the provisions of S19B (1), particularly sub paragraphs (b) (i) and (iii) would justify such a disposition. I am required to explain certain things to you. I am going to deal with you in a way that I believe recognises your level of criminality and promote your rehabilitation. You must be of good behaviour for a period of time – three years will be the period – and you'll have to keep paying the money back, but if you fail, without reasonable cause of excuse to comply with these conditions, the matter can be brought back before the Court and the recognizance can be varied by extending or reducing it or by altering the conditions in some way.
Pursuant to s19B of the Crimes Act I order that you be discharged on this complaint without conviction upon you giving security in the sum of $2000.00 without surety and upon you entering into a recognizance that you will be of good behaviour for a period of three years, and further that you will make reparation in the sum of $801.11 at the rate of $234.80 per fortnight, until that sum is repaid in full."
Central to the plea, and not challenged by the prosecution, was the factual statement that the husband of the respondent had not been in permanent employment. His employment was intermittent, so that it was uncertain from week to week what he had, or was expected, to do. Thus, the mental condition of the respondent, amounting to reckless indifference, contributed to her failure to state the relevant periods of her husband's employment.
The argument advanced on behalf of the applicant is really that the learned magistrate either made inappropriate use of the report of December 2005 or gave it undue weight. However, the notice of review does not specifically identify such an error. The circumstances of this case are not an appropriate vehicle to argue the central tenet advanced by the applicant. It may be that the court ought to have imposed a conviction, but failure to do so here does not constitute appealable error. The court had been told that most of the money unlawfully obtained by the respondent had been recouped and the court provided a specific time frame for the payment of the balance. The court had accepted that the conduct was reckless, a matter consistent with the plea. The court did impose a recognizance as part of its order. Pursuant to the statutory requirements of the Crimes Act, the amount involved, and the subjective circumstances of the respondent, it is not appropriate that the respondent be sentenced to a term of imprisonment, either immediate or suspended. The recouping of the money had, in part, constituted a sanction. The addition of a conviction alone would not have constituted an effective general deterrent. No comparable range of penalties was argued as warranting appellate intervention. Failure to impose a sentence of imprisonment, immediate or suspended, does not of itself show error. Whatever one might think of the approach taken by the respondent and her legal advisors in attempting to avoid a hearing by recourse to a claim concerning fitness to plead, the magistrate was nevertheless entitled, on the plea, to pay regard to the general psychological condition of the respondent. That material was not limited to the opinions expressed by the treating psychiatrist. Counsel, in the course of the plea in mitigation, had advanced instances where the conduct of the respondent showed some degree of mental disturbance. The plea was not that she denied responsibility, but simply that her state of mind generally made her reckless in determining whether on a particular week, or during a particular period, her husband had worked either full or part time.
Error has not been shown. The appeal ought be dismissed.
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