Wilkinson v Morrissey

[2000] WASCA 241

WILKINSON -v- MORRISSEY [2000] WASCA 241

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 241
Case No:	SJA:1078/2000	Heard:	4 AUGUST 2000
Coram:	TEMPLEMAN J	Delivered:	4/08/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	PETER WILKINSON KEVIN PATRICK MORRISSEY
Catchwords:	Appeal against sentence imposed for offences under Social Security Act 1991 Whether fines imposed for knowingly retaining pension far beyond respondent's entitlement were adequate Whether Magistrate properly considered usual disposition for matters of this nature Operation of s 20AB Crimes Act 1914 and s 67(2)(g) Sentencing Act 1995
Legislation:	Crimes Act 1914 Sentencing Act 1995 Social Security Act 1991
Case References:	Liddington (1997) 97 A Crim R 400 Nunn v Kinnon (1988) 4 WAR 459 Pickett v Fox, unreported; SCt of WA (Murray J); Library No 930347; 15 June 1993 R v Purdon, unreported; CCA (NSW); Appeal No 60659; 27 March 1997 R v Rossi (1988) 4 WAR 463 Laxton v Justice (1985) 38 SASR 376 Lowe v The Queen (1984) 154 CLR 606 R v Tait (1979) 24 ALR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WILKINSON -v- MORRISSEY [2000] WASCA 241 CORAM : TEMPLEMAN J HEARD : 4 AUGUST 2000 DELIVERED : 4 AUGUST 2000 FILE NO/S : SJA 1078 of 2000 BETWEEN : PETER WILKINSON

Appellant

AND

KEVIN PATRICK MORRISSEY
Respondent

Catchwords:

Appeal against sentence imposed for offences under Social Security Act 1991 - Whether fines imposed for knowingly retaining pension far beyond respondent's entitlement were adequate - Whether Magistrate properly considered usual disposition for matters of this nature - Operation of s 20AB Crimes Act 1914 and s 67(2)(g) Sentencing Act 1995

Legislation:

Crimes Act 1914

Sentencing Act 1995
Social Security Act 1991

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr D W L Renton
Respondent : In person

Solicitors:

Appellant : Commonwealth Director of Public Prosecutions
Respondent : In person

Case(s) referred to in judgment(s):

Liddington (1997) 97 A Crim R 400
Nunn v Kinnon (1988) 4 WAR 459
Pickett v Fox, unreported; SCt of WA (Murray J); Library No 930347; 15 June 1993
R v Purdon, unreported; CCA (NSW); Appeal No 60659; 27 March 1997
R v Rossi (1988) 4 WAR 463

Case(s) also cited:

Laxton v Justice (1985) 38 SASR 376
Lowe v The Queen (1984) 154 CLR 606
R v Tait (1979) 24 ALR 473

(Page 3)

TEMPLEMAN J: The Crown has appealed against a sentence imposed on Mr Kevin Patrick Morrissey by a Stipendiary Magistrate sitting in Kalgoorlie.

1 Mr Morrissey pleaded guilty to two offences against s 1347 of the Social Security Act 1991. The offences involved Mr Morrissey in knowingly obtaining payments of disability support pension far beyond his entitlement to that pension. One offence involved the sum of $9158.70 and the other offence $477.30. In relation to the second offence the learned Magistrate imposed a fine of $250. There is no appeal from that sentence.

2 The offence in relation to the $9,158.70 was committed over a period between April 1998 and January 1999. The offence was committed because although Mr Morrissey was originally entitled to the pension as a result of a back injury, he took up full-time employment during the time he was in receipt of that pension. Between April 1998 and January 1999 he earned some $62,000 and he failed to inform the authority that he was working.

3 That was a very serious matter. It came to light as a result of a tip-off which led to Mr Morrissey being interviewed by the police. He admitted the offences in the course of the interview: he did not attempt in any way to conceal them. He explained that he had used the money for gambling and to support his family.

4 Mr Morrissey appeared before the Magistrate on 2 May of this year without the benefit of any legal advice or representation. The proceedings were quite short. The police sergeant who was prosecuting informed the learned Magistrate of the charge and of the circumstances to which I have just referred. The Magistrate asked whether Mr Morrissey wanted to say anything about the matters about which he was charged. He said he did not.

5 He told the Magistrate he was working and had stopped gambling. He said he had been paying off the amount which he had, in effect, stolen. There was some discussion about the amount he could pay and had been paying. As a result, the Magistrate made an order for restitution. The Magistrate then said:

"In the circumstances where you are going to make restitution of that amount of money, then I will make an order for a fine which could be less than otherwise would be appropriate. This is a serious offence because obviously whilst you are double

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dipping in the system other people and resources are scarce Mr Morrissey.

In relation to the matter then there will be a fine of two hundred and fifty dollars on each, there will be costs of eighty one dollars and seventy cents, there will be an order that you pay restitution in the sum of nine thousand six hundred and thirty six dollars."

6 The Crown appeal is based on the proposition that the fine of $250 for the offence of stealing over $9000 was wholly inadequate and demonstrated that the Magistrate's discretion must have miscarried. The maximum penalty for the offence is 12 months imprisonment or a fine of $6600 or both.

7 The Magistrate's reasons, as I have indicated, were very shortly stated. She did not refer to the established principle, which has been stated in the Full Court of this Court and in other jurisdictions, that, generally, offences of this kind call for sentences of imprisonment. That is because such offences are prevalent in the community. They are difficult to detect and the penalty should reflect a concern for the protection of the public revenue.

8 These offences are viewed seriously because they threaten the basis of the Social Security system, which is designed to provide security for those in the community who are in genuine need.

9 One way of preventing abuse is to subject applicants to much more stringent screening requirements. But that, of course, would not only increase the administrative burden on the system and therefore increases its costs, it would also make it harder for people who are in genuine need to obtain the support when they require it.

10 The approach taken by the Courts has therefore been to impose sentences which have a deterrent effect on people in the community who might be tempted to engage in fraudulent activity of this kind. Those principles are set out in three cases in particular, R v Rossi (1988) 4 WAR 463, Nunn v Kinnon (1988) 4 WAR 459 and Pickett v Fox, unreported; SCt of WA (Murray J); Library No 939347; 15 June 1993.

11 A similar approach has been taken in other jurisdictions. I have been referred to a decision of the Court of Criminal Appeal in New South Wales in the decision of R v Purdon, unreported; CCA (NSW); Appeal No 60659; 27 March 1997 in which the Court stated that unless there are

(Page 5)

exceptional circumstances, in offences of this kind a sentence of imprisonment would be the usual disposition.

12 In my view, in failing to have regard to these principles, the learned Magistrate failed to give proper consideration to the disposition of this matter. Her discretion therefore miscarried.

13 The fact that a fine of $250 was imposed for a theft of over $9000 is, I think, a further indication of the miscarriage of that discretion.

14 Furthermore, the Magistrate imposed the fine without making any inquiry as to Mr Morrissey's financial circumstances and his means of repaying that fine or any other fine which might be imposed. That was a matter which under section 17 of the Crimes Act 1914 the Magistrate was obliged to take into consideration.

15 The fact that Mr Morrissey had agreed to repay, which influenced the Magistrate to the extent that it did was, I think, to a large extent irrelevant. There is no penalty in requiring somebody who has received money which he should not have received, to pay it back.

16 In those circumstances it falls to me to resentence Mr Morrissey.

17 The first point to be noted is that this is a Crown appeal. Mr Morrissey has already pleaded guilty and been dealt with. Therefore, as counsel for the Crown quite rightly accepts, there is an element of double jeopardy here which is a matter to be taken into account. In those circumstances the Crown has said that it does not press for a custodial sentence even though that might have been appropriate at the outset.

18 Secondly, the cases, certainly the Western Australian cases, to which I have referred were all decided before the Sentencing Act 1995 came into force. Until then, the options were really only a sentence of imprisonment or a fine.

19 Since the coming into force of that Act there have been other options involving the serving of a sentence in the community pursuant to either an intensive supervision order or a community based order.

20 The scheme of the Sentencing Act requires the sentencing Judge or Magistrate to consider each available option in increasing order of severity and to stop at the point at which an appropriate sentence is reached. In other words, if an appropriate sentence would be, for example, a community based order, then one does not go on and consider

(Page 6)

anything further. If that is the appropriate disposition, then obviously imprisonment is not required.

21 That being so and despite what was said in Purdon, it seems to me that it may be appropriate now to say that a sentence of imprisonment is not always the appropriate disposition of an offence of this kind. If, of course, the offence is a very serious one, perhaps committed over a long period or there are a series of offences or the offender has a record of committing offences of this kind or there are other aggravating circumstances, then I have no doubt that a sentence of imprisonment could well be appropriate. The deterrent effect must be taken into account.

22 In the present case the offender, Mr Morrissey, is 45 years old. He has no convictions apart from some traffic offences which are of no relevance. He is therefore a man of previous good character.

23 He admitted these offences as soon as he was accused: and he pleaded guilty at the earliest opportunity. Those are powerful mitigating circumstances.

24 Mr Morrissey is working. He is an unskilled man but he works underground on shift in the mining industry. He takes home some $2000 per fortnight. He lives alone in rented accommodation. He is separated from his wife and children who are twin daughters now 8 years old. He looks after his children for three weekends out of four.

25 His employment is as permanent as employment in the mining industry ever is, but he told me he has good prospects, having regard to the future of the mining industry in the Kalgoorlie region.

26 However, he works 6 days a week either on the day shift from 7.30 in the morning till 6.00 in the evening or on the night shift from 6.30 in the evening till 5 o'clock in the morning. These are 10 and a half hour shifts: two weeks on days and a week on nights with weekends off, but they are working hours which take him out of his home for something like 12 hours each day.

27 In those circumstances I raised with Mr Morrissey whether, if I imposed a community based order which required a community service element, he would comply with it. Mr Morrissey said it would be difficult but that if that is what he had to do, then he would do it.

(Page 7)

28 Against that, counsel for the Crown submitted that because of the possible difficulties in arranging for appropriate community work in Kambalda where Mr Morrissey lives, an appropriate option might be a suspended term of imprisonment.

29 That is something to which I gave careful consideration. I had regard to the decision of Liddington (1997) 97 A Crim R 400, a decision of the Court of Criminal Appeal in which the Court discussed the circumstances in which a sentence of imprisonment might be suspended. There was a divergence of views between the learned Chief Justice and Steytler J on the one hand and Ipp J on the other.

30 The learned Chief Justice and Steytler J were of the view that the primary purpose of suspending the whole or part of a sentence was rehabilitative. Ipp J said that the prospect of rehabilitation should not necessarily be the determining factor in deciding to suspend a sentence and that many other factors might be relevant. These would include the seriousness of the offence, personal to the offender, including aggravating and mitigating circumstances.

31 The difficulty I had with a suspended sentence in this case is that a sentence of imprisonment cannot be suspended unless it is appropriate to impose a sentence of imprisonment in the first place. It seemed to me wrong in principle to say that I would suspend a sentence of imprisonment if, working my way up through the options available in the Sentencing Act, I came to the conclusion that imprisonment was not required. And I did come to that conclusion in this case particularly because the Crown did not press for a sentence of imprisonment, I therefore formed the view that it would be sufficient o impose amore substantial fine and a community based order, with a community service element.

32 The advantages of this disposition seemed to me to be these:

1. Mr Morrissey would continue in employment. He would therefore be able to continue his restitutionary payments, and a fine.

2. The community service would encroach on Mr Morrissey's freedom, while at the same time requiring him to make a contribution to the community which he had defrauded.

33 Having regard to this conclusion, I sought a means of implementing it. It appeared that s 20AB of the Crimes Act 1914 would enable me to impose a community based order, because it is a sentence which is available in the State jurisdiction.
(Page 8)

34 What I had in mind is that in conjunction with the community corrections officer, Mr Morrissey would work out a program which required him to do some community service during the days in which he is working nights and during the evenings in which he is working days and over the weekends or part of the weekend when he is not required to look after his daughters.

35 That service to the community might involve something outside a formal program. It might involve helping at an old people's home or helping disabled children at an institution or helping in a hospital. I might involve cleaning in a school. It has to be work which takes up time which would otherwise be available for relaxation because it has to involve a punitive element.

36 My original intention was to impose a community service regime on Mr Morrissey for a period of 12 months. However, pursuant to s 67(2)(b) of the Sentencing Act, the offender is required to do at least 12 hours work in any seven day period, up to a maximum of 120 hours.

37 Because of Mr Morrissey's work commitments, I thought it would be too onerous to require 12 hours work per week. Furthermore, I intended commitment to community service to be spread over a year.

38 I discussed this position with counsel for the Crown, who submitted that it was possible under the Crimes Act, to impose a community service element extracted from the State legislation, without being bound by the constraints which it imposed.

39 I accepted that submission. Accordingly, I sentenced Mr Morrissey to 200 hours of community work, at a rate of 5 hours per week. I also increased the fine from $250 to $1,000 and ordered reparation at a rate of $250 per month.

40 Subsequently, counsel reconsidered his submission. He very properly drew to my attention that under s 20AB(3) of the Crimes Act, I was constrained to impose a sentence which did comply with the Sentencing Act.

41 I accept that to be so. It is therefore necessary for me to correct the sentence, pursuant to s 37 of the Sentencing Act. This gives me a wide discretion. However, I remain of the view that in this case, a community based order with a community service element is appropriate. It must now be carried out at a rate of 12 hours in any seven day period.

(Page 9)

42 Because of the considerable inconvenience which this will cause Mr Morrissey, I am satisfied that a shorter overall period will suffice.

43 I therefore recall the order made on 4 August and impose a community based order involving an unpaid community service element of 72 hours, over a six week period. The fine of $1,000 will remain: as will the restitution payments of $250 per month.