Turle v Johnson No. Scgrg-98-1505 Judgment No. S7024
[1998] SASC 7024
•24 December 1998
TURLE v JOHNSON
[1998] SASC 7024
Magistrates Appeal: Criminal
MULLIGHAN J This is an appeal against sentence. The appellant was charged on the complaint of the respondent, an employee of the Commonwealth Services Delivery Agency, with 24 offences against the Social Security Act 1991 (Cth). He pleaded guilty to all charges before a learned Magistrate and was convicted. On 8th October 1998 a sentence of imprisonment for 15 months was imposed. The learned Magistrate ordered that the appellant was to be released after serving six months of that sentence upon his entering into a bond in the sum of $10 to be of good behaviour for a period of 24 months. He was also ordered to pay costs and fees amounting to $129 and $5,998.20 by way of reparation.
The sole ground of appeal is that the sentence is manifestly excessive. At the outset of the hearing of the appeal, Mr Griffiths acknowledged, correctly in my view, that the decision of the learned Magistrate to impose a sentence of imprisonment and not to order immediate release was within the proper exercise of the sentencing discretion. The complaint is that he erred in the exercise of the sentencing discretion in fixing the length of the sentence and the period to be served before release both of which are said to be manifestly excessive.
The charges against the appellant must be regarded as serious breaches of the law. The appellant was regarded as a sole parent at relevant times and was receiving a part Sole Parent Pension of $335.20 per fortnight. He was entitled to additional income of $81.10 per fortnight. However, he obtained employment with Pace Trading Pty Ltd on 16th January 1997 and earned income of $739.61 per week. He did not disclose that employment to the Department of Social Security Agency and consequently retained the Pension to which he was not entitled for the period from 23rd January 1997 until 13th November 1997. The total amount of the overpayment was $5,998.20.
The first 22 charges relate to receiving the pension and are breaches of s1347(b) of the Social Security Act 1991 (Cth). The remaining two charges relate to false statements made by him in Sole Parent Review forms lodged by the appellant on 18th September 1997 and 28th November 1997 wherein he stated on each occasion that he had not undertaken any paid work during the previous twelve weeks when, in fact, he had paid employment with Pace Trading Pty Ltd. This conduct is a breach of s1344(1)(a) of the Act. The maximum penalty for each of these offences is imprisonment for twelve months: s1350. The Court may impose a penalty for all the offences which must not exceed the sum of the maximum penalties which could be imposed if penalties were imposed for each offence separately: s1353.
The appellant is aged 37 years. He was educated to the level of year 11 and after leaving school was employed in various jobs over the years as a driver, engraver, cleaner or process worker. He married at age 18 years. There are four children of the marriage who are now aged 17, 16,13 and 11 years. The appellant and his wife separated in 1993. The oldest child lived with the appellant. The youngest child stayed with him intermittently for substantial periods of time and the other children lived with their mother. During the marriage relationship, the appellant was the main provider. For a time after the separation, the appellant cared for all of the children for extended periods and also was a foster parent for a child of a friend.
At the time of the separation, the appellant was in considerable financial difficulty having been left with credit card debts amounting to $15,000 and an amount of $49,000 owing on a mortgage on the former matrimonial home. He paid the outgoings on the home until August 1997 when the house was sold due to financial difficulties. The proceeds of the sale were just sufficient to discharge the mortgage. The appellant has continual difficulty in paying off the debts on the credit cards.
By the time of his appearance before the learned Magistrate, the appellant had lived in a defacto marriage relationship for about three years. The two children of his partner treated him as their father.
The appellant has a long term drug problem. By the time of the separation from his wife, he was using alcohol excessively and was also using amphetamines and cannabis. He commenced counselling with a drug and alcohol rehabilitation counsellor. He also consulted a psychiatrist and continued to see him with frequency until late 1995. In that year he became addicted to heroin. He sought medical assistance and undertook a methadone programme
The appellant obtained the employment with Pace Trading Pty Ltd through the Commonwealth Employment Service. At that time he was receiving the Sole Parent Benefit. He claims that because the Commonwealth Employment Service had arranged the employment, he believed that it would inform the Department of Social Security of his change in circumstances. However, he continued to receive the Pension along with his wages. He used the Pension to pay for food and necessary expenses because he was using his wages to pay for heroin. There was no justifiable reason to expect that the Commonwealth Employment Service would inform the Department of Social Security of his change in financial circumstances, but even if the appellant did have that view, it soon became plain to him that the Department was not aware, because there had been no reduction in the pension.
After the sale of the house, the appellant and his defacto wife moved into rental accommodation with two of his children and her two children. He reduced his heroin intake and again undertook a methadone programme. After he left work, he suffered another setback. His son left him and went to live with his mother. He suffered much grief but it is of significance that he did not turn to drugs and alcohol, at least immediately.
In February 1998 he again met a man who had previously supplied him with heroin and he again used the drug during March and April 1998. He then resumed taking methadone.
The appellant has been a good parent and has demonstrated some strength of character at times in dealing with the various crises which he has had to face. He has ended heroin addiction on a number of occasions but has resumed taking the drug, however not since April 1988.
The present charges were laid against him in March 1998 and he first appeared in the Magistrates Court on 23rd April 1998. The charges caused him great anxiety. After he left his employment in November 1998, he was entitled to the Pension. He commenced to repay the money due by the means of the Department withholding part of the Pension. He has insight into his drug problem and acknowledges his wrongdoing.
The psychiatrist formed the view in June 1998 that the appellant had an adjustment disorder with Anxious Mood. He requires psychotherapy. However, the psychiatrist also formed the view that the appellant is highly motivated to rehabilitate and that the likelihood of successful rehabilitation was high, but that imprisonment would have a detrimental effect on rehabilitation as he will again be exposed to drugs.
The appellant has a long record of prior offending commencing as a youth in 1978. Over a period of 18 years he has appeared before a Court on 38 occasions. Most of his previous convictions are for relatively minor offences such as possessing cannabis and motor vehicle offences. However, he does have convictions as an adult for offences involving dishonesty. In July 1980 he was convicted in the District Court of larceny in a dwelling and sentenced to imprisonment for four months which sentence was suspended. In November 1987 he was convicted in the Magistrates Court of larceny and released on a bond with a condition that he undertake 100 hours of community service. In September 1988, he was convicted of unlawful possession and given a sentence of imprisonment for one month which was suspended. In April 1989 he was convicted of receiving and being an accessory after the fact to a felony. He was sentenced to imprisonment for six months on each charge to be served concurrently and the sentence was suspended. Later in that year he was given a sentence of imprisonment for nine months in consequence of being convicted of 2 counts of larceny. In 1993 he was sentenced to 120 hours of community service upon being convicted of assault occasioning actual bodily harm. He served one month in prison in 1995 for driving a motor vehicle whilst disqualified from holding or obtaining a licence to drive a motor vehicle. In 1997 he was convicted of larceny and fined $100.
It may be seen that even though the appellant has a long history of offending, he was not convicted of any offence involving dishonesty since 1989 and those offences were committed in August 1988, except for the offence in 1997 which was for shoplifting. The appellant claimed that he simply forgot to pay but pleaded guilty because he did not have the benefit of legal advice.
Prior to being sentenced for the present charges, the appellant was caring for his mother who suffers from hypertension and had been left alone by his father who had returned to Italy to look after his own mother. At the time he was sentenced he was working as a casual industrial cleaning sub-contractor on a standby basis with an Adelaide firm. This work required him to clean up acids and other hazardous spills on an emergency basis. He expected to receive full-time employment on contract in Kalgoorlie at wages of between $30,000 and $40,000 per annum. Should that not have come to pass, his employer was, and remains, willing to employ him.
All of these matters were placed before the learned Magistrate. He sentenced on the basis that the offences were committed to enable the appellant to support his drug habit. In his remarks, he referred to The Queen v Spiero (1979) 22 SASR 543 which he said had equal application to the present case. In Spiero the Court of Criminal Appeal was concerned with an appeal against sentence imposed upon a drug addict for armed robbery. King CJ said at p549:
“The appellant has a criminal record. He is addicted to heroin. One feels sympathy for a person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same severe punishment as would be received by others.”
The learned Magistrate went on to say:
“I bear in mind the various authorities which make it clear that unless there are special circumstances then a term of imprisonment is to be expected for offences of this type where benefits or payments received there were substantial and the offending was over a prolonged period. In this case it was over a period of 10 months and the amount received by you which you were not entitled to was almost $6,000.”
He concluded that there were no circumstances which would enable him to impose other than an immediate term of imprisonment. He said that he also had regard to the appellant’s history of offending. He said:
“In imposing [the sentence which he imposed] I have not overlooked the defendant’s vast antecedence record and whilst it cannot be said that you have been consistently dishonest, you have consistently been committing offences over a period of time which shows a total disregard for the law and for the authorities.”
There is no error in the approach of the learned Magistrate to his decision to impose a sentence of imprisonment and that some portion of it be actually served. As has been said in many cases, there is a need for general deterrence in the sentencing process. Indeed, in R v Cameron & Simounds (1993) 171 LSJS 305, King CJ, with whom Duggan and Debelle JJ agreed, said that in cases of deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount and the necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations.
The learned Magistrate correctly gave emphasis to the deterrent aspect of punishment in the head sentence and by his decision that the appellant had to serve some part of the sentence in custody. However, there were compelling personal circumstances of the appellant which, in my view, justified leniency. Before considering those matters, I make two observations about the approach of the learned Magistrate. The first relates to his consideration of the dicta of King CJ in Spiero. It cannot be doubted that the learned Magistrate was correct in his application of that dicta to cases of this nature. Drug addiction is not in itself a mitigating factor. However, that is not the only significance of the appellant’s history of drug dependence. In the present case, it is the appellant’s response to his drug addiction which is a relevant matter. He has voluntarily ended drug addiction from time to time which shows considerable strength of character. True it is that weakness of character has contributed to his resumption of drug abuse, but again his strengths have enabled him to break the habit. That is a matter which should have given the learned Magistrate some confidence in the prospects of rehabilitation when considering how much of the sentence must be served in prison. The second observation is about one aspect of what the learned Magistrate said about the appellant’s past offending. I do not think it is correct to say that it shows a total disregard for the law and the authorities. The appellant was placed on a bond on seven occasions in all. I have not seen the need to mention them all. On each occasion he discharged his obligations under the bond. Perhaps that is a matter which influenced the various sentencers when they released him on a bond. It is a matter which should have influenced the learned Magistrate in a positive, and not entirely negative, manner. Previous sentencers had obviously seen fit to release him on a probation. He showed sufficient resolve and strength of character, even though he was a drug addict, passive or active at various times, to meet his obligations. That is a positive matter which was not recognised by the learned Magistrate. Also, his past record does not demonstrate a total disregard of the law and the authorities. As has been mentioned, he abused alcohol and other drugs and many of his offences related to that conduct.
In my view, the manner in which the learned Magistrate regarded those matters is an error in the exercise of the sentencing discretion.
I have acknowledged the importance of the deterrent aspect of punishment for offences of this nature. In Keeley v Department of Social Security (unreported, 30th July 1993, Jd No S4075), I had occasion to consider the cases dealing with sentencing principles for offences of this nature including R v Cameron and Simounds. I expressed the view that the Full Court in that case in saying that the deterrent purpose of punishment must be paramount, was not laying down a principle of sentencing that in all cases of fraud against the welfare system, mitigating features of the circumstances of the offence and the offender can never assume prominence. I need not repeat what I said in Keeley and I adhere to that view. The appellant, unlike the offender in Keeley, is not of good character and not all mitigating factors in that case are present here, but the principle remains that mitigating factors must be considered and given appropriate weight. All the more so, in my view, in a case such as the present, when considering the length of the period which must be served in custody. Where there are mitigating circumstances and real prospects of rehabilitation, emphasis may be given to them at that stage even if it is not thought appropriate to do so when fixing the head sentence.
The learned Magistrate did not mention any of the many positive circumstances of the appellant, such as his responsibility to his children, defacto wife and her children, his employment history and prospects, his responsibility towards his mother, his mental condition, his response to his drug addiction and his plea of guilty and co-operation. Those matters, in the circumstances of this case given his past record and the extent of his offending, could not have justified immediate release, but I think they did justify a lesser part of the sentence to actually be served in custody than that fixed by the learned Magistrate. Furthermore, the information before the learned Magistrate justifies the conclusion that there are real prospects of rehabilitation. A short period in prison would bring home to the appellant the seriousness of his wrong doing and the good prospects of employment should be encouraged.
In my view, the requirement that the appellant serve six months, a little short of half of the head sentence, was not justified in the circumstances and does not acknowledge the real prospects of rehabilitation. Having to remain in custody for six months may well compromise rehabilitation. In my view, the learned Magistrate erred in not giving due emphasis to those matters and only to deterrence when considering the period of time which must be served in custody and, in that sense, the sentence is manifestly excessive.
That aspect of the sentencing discretion must be exercised afresh. In my view, the period to be served in custody should be three months. Such a period will satisfy the requirements of punishment and deterrence and encourage rehabilitation.
The appeal is allowed for this limited purpose. The head sentence is confirmed and the order of the learned Magistrate is varied by reducing the period to be served in custody to three months.