Stevens v Centrelink - [2003] NTSC 16

Stevens v Centrelink [2003] NTSC 16
PARTIES:DEON ROBERT STEVENS

v
CENTRELINK

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA104 of 2002 (20102281)
DELIVERED:  7 March 2003
HEARING DATES:  28 February 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL - JUSTICES - Appeal against sentence - knowingly or recklessly presenting a document to an officer which was false in a particular - whether the magistrate erred in placing excessive weight on the appellant’s prior convictions - whether the magistrate erred in placing excessive weight on general deterrence - whether the sentence imposed was manifestly excessive - Justices Act (1928) NT.
Social Security (Administration) Act 1999 (Cth), s 217, Crimes Act 1914 (Cth), s 20(1)(b), 21B
Lazaro Kovacevic v R (2000) 111 A Crim R 131, Munungurr v R (1994) 4 NTLR 63, applied.
REPRESENTATION:
Counsel:
Appellant:H Spowart
Respondent:  G Fisher
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Commonwealth Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200311
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Stevens v Centrelink [2003] NTSC 16
No. JA104 of 2002 (20102281)

BETWEEN:
DEON ROBERT STEVENS

Appellant
AND:
CENTRELINK

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 7 March 2003)

This is an appeal from a sentence of a magistrate imposed in the Katherine Court of Summary Jurisdiction on 17 October 2002.
The appellant pleaded guilty to 10 counts of contravening s 217 of the Social Security (Administration) Act. The offences were committed between 6 April 2000 and 10 August 2000. The appellant, through his offending, obtained $3673.25 to which he was not entitled.
The learned stipendiary magistrate convicted the appellant. He imposed an aggregate sentence. His Worship stated the starting point was a term of five months which allowing for a 25 per cent discount reduced the sentence to three months three weeks imprisonment.
Pursuant to s 20(1)(b) of the Crimes Act, the learned stipendiary magistrate ordered the release of the appellant in the sum of $1000 after serving 21 days on condition that he be of good behaviour for a period of “three months”. Later in the sentence the learned stipendiary magistrate refers to this as being a period of three years. Pursuant to s 21B of the Crimes Act he further ordered that the appellant make reparation in the sum of $2807.31.
The amended grounds of appeal dated 24 February 2003 sets out the following grounds of appeal:
“1.The Learned Magistrate erred in placing excessive weight on the Appellant’s prior convictions.
2.The Learned Magistrate erred in placing excessive weight on general deterrence.
3.The sentence imposed is manifestly excessive in all the circumstances of the offender and the offences.”
The appellant does not complain in respect of the sentence of three months 21 days imprisonment. It is the appellant’s complaint that the magistrate erred in imposing 21 days of actual imprisonment rather than suspending the full period of imprisonment.
In the Court of Summary Jurisdiction the then counsel for the respondent did not submit that a term of actual imprisonment was appropriate or that the Crown were seeking a term of actual imprisonment.
The agreed facts upon which the offences were found proved are (tp 4 - 5):
“… The offending relates to the defendant’s receiving New Start Allowance during the period 6 June to 10 August 2000. The offences arose out of the defendant not declaring his income derived from employment. The defendant was employed by Australian Pacific Tours. He was injured at work on 16 December 1999 and began to receive worker’s compensation initially from MMI and then, after 28 March 2000, from Alliance.
On 23 March 2000 Mr Stevens claimed New Start Allowance. For the fortnights ended 23 March 2000 to 10 August 2000 Mr Stevens was in receipt of both New Start Allowance and worker’s compensation payments. He was in receipt of weekly payments of compensation of $556.50 until 1 June 2000. Thereafter he received weekly payments of compensation of $434.48.
At the same time he was in receipt of New Start Allowance between $345.60 and $429.29 per fortnight. During the period ended 6 April 2000 to 10 August 2002, Mr Stevens submitted fortnightly forms for the continuation of New Start Allowance. On each of those forms Mr Stevens falsely answered ‘no’ to the question asking whether he has been in receipt of compensation payments.
There’s an observation in brackets that he was not charged in relation to the original application on 23 March because his first payment from Alliance was received after that date.
The overpayment was discovered on - it says 16 January 2000, which I assume to be incorrect and must be 16 January 2001 - via a data match with the Australian Taxation Office. The overpayment to the defendant as a result of the offences was $3673.25.
The defendant participated in a record of interview in which he claimed that he’d advised Centrelink of the compensation payments. However, this is not recorded on his file. He answered ‘no’ to the questions - he admitted that he answered ‘no’ to the questions: ‘Were you paid or did you claim compensation for the period’ to which the form relates on all the forms.”
A record of prior convictions was tendered, included in Exhibit P1 on this appeal. The record shows a conviction for criminal deception in the Darwin Court of Summary Jurisdiction on 9 January 1996. The appellant was convicted and fined $750. On 13 June 1989 the appellant was convicted in the Preston Magistrates Courts of handle stolen goods. He was convicted and fined $400.
Mr Baker, who appeared for the appellant in the Court of Summary Jurisdiction, submitted that the appellant was aged 32 years. When the offences occurred he was married but separated and living under the one roof. He had four children. The children range in age from four years to nine years. At the time of the offending they were aged two to seven years of age. It was submitted on his behalf that the offences happened when the appellant was off work injured. He was extremely short of money. He had the responsibility of supporting his young family. The money was used for food and living expenses. The appellant himself stated he had at the time an $1800 power bill. It was put to the learned stipendiary magistrate that the appellant had been in work fairly constantly since that period of time. The learned stipendiary magistrate was informed that a few days prior to 17 October 2002 the appellant had dropped a load on his leg. He had sustained 13 broken bones in his leg which would necessitate him being off work for approximately another six weeks. He was on the date he attended the Court of Summary Jurisdiction in Katherine receiving worker’s compensation. From the total amount received as a consequence of the offending, the appellant had repaid $865.
I will now deal with the grounds of appeal.
Ground 1: The Learned Magistrate erred in placing excessive weight on the Appellant’s prior convictions.
The learned stipendiary magistrate stated (tp 18):
“I’m of the view in this case there’s got to be a gaol term. There’s got to be a gaol term to indicate to people in the community that they can’t help themselves to money, as you have done, especially where that person has a special reason not to; the special reason being the warning for criminal deception and the old warning for unlawful possession.”
and further (tp 18):
“I think the appropriate thing to do is to impose a gaol term which will be partially suspended after you’ve served three weeks. That, to my mind, is a balancing exercise. You shouldn’t have offended. You had a special warning not to - or special warnings not to. After a short period of time in gaol you can then be released to return home to your family.”
His Worship also stated (tp 17):
“You got something to which you were not entitled and that was the sum of $3673.25. You have also been in trouble for handling stolen goods before, which involves getting something to which you’re not entitled. The effect of all of that is that you’re not entitled to the leniency that a first offender receives. It means that when you committed the Social Security offences you had a very good reason not to. You’ve been in trouble before; you’d had court warnings given to you and those court warnings should’ve worked on your mind so that you didn’t feel the need to fill out these forms to get money to which you’re not entitled.”
Ms Spowart, counsel on behalf of the appellant, submits in written submissions made to this Court on 28 February 2003 (p 2)
“… the Learned Magistrate clearly focussed on the Appellant’s prior convictions in sentencing. The Learned Magistrate viewed the existence of the prior convictions or ‘special warnings’ as matters aggravating the offending and justifying ‘a gaol term’.
‘The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences’ (Veen [No 2] (1988) 164 CLR 465 at 477).
The Appellant submits the Learned Magistrate’s approach demonstrates error. The Learned Magistrate imposed the sentence he did based [on the] Appellant’s prior convictions, rather than on an assessment of the gravity of the offending.
The Appellant submits the normal disposition for offences of this kind involving the same sum of money is a fully suspended sentence or bond. The sentencing tables developed by the Commonwealth DPP demonstrate those are the usual dispositions for such offending.
The Appellant submits the Learned Magistrate erred in imposing a sentence of increased severity because of the Appellant’s prior convictions. The Appellant submits there is nothing in the objective circumstances of the offending which elevate it in severity. On the contrary; the Appellant submits the offending lies towards the lower end of the scale.
The objective circumstances of the offending
The offences were committed over a four month period, a period which cannot be considered lengthy. The Appellant obtained $3673 to which he was not entitled, a relatively small amount in the context of similar offending.
The Prosecutor conceded the sum involved was a ‘lesser amount’ (p. 16). The offending ceased before it was discovered (p. 4). The Appellant did not use false identities to gain payment and the offences were easily detected (p. 11).
Counsel for the Respondent submitted that failure to declare work health payments may be less culpable than failing to declare income (p 16). The Appellant submits this submission is correct; the Appellant did not actively seek employment, work on a day to day basis, and then deliberately conceal such activity from Centrelink.”
The learned stipendiary magistrate refers to “the warning for criminal deception and the old warning for unlawful possession”. It would appear he is referring to the conviction for criminal deception on 9 January 1996 and the conviction for handle stolen goods in 1989. I note the appellant does not have a conviction for unlawful possession. The record shows a charge of unlawful possession was withdrawn.
I accept the submission on behalf of counsel for the appellant the learned stipendiary magistrate erred in imposing a sentence of increased severity because of the appellant’s prior convictions. The 1989 offence was 13 years old at the time of conviction for this offence, it was committed when the appellant was 19 years old. It was “sufficiently far in the past to be more or less disregarded” Kovacevic v R (2000) 111 A Crim R 131 at 133.
There was a gap of seven years between the first and second conviction and a gap of four years between the conviction in 1996 and the commission of these offences.
The appellant should have been given credit by the learned magistrate for this gap in his record.
In Munungurr v R (1994) 4 NTLR 63 the Court of Criminal Appeal, Martin CJ, Angel and Mildren JJ held at p 74 - 75:
“… In our view, his Honour does not appear to us to have given sufficient credit to the applicant for the gap between the two convictions. Where there is a significant period free from conviction, this will normally justify substantial mitigation of the sentence: see generally, Thomas Principles of Sentencing: The sentencing policy of the Court of Appeal Division 2^nd ed, pp 200 - 202. We do not think it was correct to say that his prior conviction precluded him from any leniency. …”
The appellant has never been previously sentenced to a term of imprisonment. I accept the learned stipendiary magistrate placed such weight on the appellant’s prior convictions that the sentence of actual imprisonment imposed is disproportionate to the gravity of the offending.
Ground 2: The Learned Magistrate erred in placing excessive weight on general deterrence.
In Kovacevic v R (supra) the South Australian Full Supreme Court considered the role of deterrence in sentencing social security offenders stating (p 138):
“… considerations of deterrence cannot displace all other considerations, either at the outset or at the conclusion of the sentencing process. All relevant considerations must be taken into account, and given due weight. …”
The appellant was a person with a strong work history and a history of supporting his family. He was the sole wage earner supporting four young children. A reference had been tendered attesting to his good character. He had repaid $865 which should have been acknowledged in a positive way in the sentencing process.
The offending ceased over two years before the date he was sentenced.
The appellant had not re-offended in that time. He had been in employment until receiving an injury shortly prior to the date he was sentenced. He had demonstrated a capacity for rehabilitation.
I would agree that in imposing a term of actual imprisonment the learned stipendiary magistrate placed too great a weight on the prior convictions and the aspect of general deterrence.
I would allow the appeal in respect of the actual term of imprisonment the appellant had been ordered to serve.
I should note that when the appeal came before this Court, counsel for the appellant tendered a schedule of comparative sentences for Social Security offences. The tender was not objected to by counsel for the respondent. I have marked it Exhibit 2 in these proceedings.
This schedule contains a reference to some 92 cases of Social Security fraud dealt with in Courts of Summary Jurisdiction in the Northern Territory between January 2001 and February 2003.
The learned stipendiary magistrate did not have the benefit of this comparative schedule.
The schedule indicates that the overwhelming majority of offenders were dealt with by dispositions that did not involve a term of actual imprisonment. The highest proportion of these were dealt with by fully suspended periods of imprisonment. This occurred even in cases where the offending involved more substantial amounts of money than this matter, the offender had a prior criminal history and the offending had been over a longer period of time than in the matter before this Court.
I confirm the conviction and sentence of three months three weeks imprisonment imposed by the learned stipendiary magistrate. The appeal is allowed to the extent that I set aside the order that the appellant serve 21 days actual imprisonment.
Accordingly, the order will be that the appellant is convicted and sentenced to three months and three weeks imprisonment. Pursuant to s 20(1)(b) of the Crimes Act the appellant is released forthwith upon giving security in the sum of $1000 O/R on condition that he be of good behaviour for a period of three years.
The order made by the learned stipendiary magistrate for reparation still stands.

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