Young v Marszalek
[1988] TASSC 92
•17 June 1988
Serial No B24/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Young v Marszalek [1988] TASSC 92; B23/1988
PARTIES: YOUNG, Patricia Jean
v
MARSZALEK, Richard Walter
FILE NO/S: LCA 9/1988
DELIVERED ON: 17 June 1988
JUDGMENT OF: Wright J
Judgment Number: B24/1988
Number of paragraphs: 9
Serial No.B 24/1988
List "B"
File No LCA 9/1988
PATRICIA JEAN YOUNG v RICHARD WALTER MARSZALEK
REASONS FOR JUDGMENT WRIGHT J
DELIVERED ORALLY DURING TRIAL
17 June 1988
This is a motion to review a sentence of imprisonment imposed upon the applicant on the 26 April, 1988 in the Court of Petty Sessions at Devonport. The applicant entered a plea of guilty to complaints alleging that on 38 occasions between the 13 May 1985 and 27 October 1986, she presented documents which were false in various particulars to the Director of Social Security at Hobart, contrary to s174(d) of the Social Security Act 1947. The learned magistrate sentenced the applicant to 76 days' imprisonment representing 2 days in respect of each separate offence, but ordered that she be released after serving 28 days' imprisonment on condition:
Firstly, that she enter into a recognizance in the sum of $1,000 to be of good behaviour for a period of twelve months and;
Secondly, that she make reparation of the sum of $6,404.76 in such manner and in such amounts as
directed by the Director of Social Security, his assistant or other authorised officer.
The applicant now complains that the sentence imposed by the learned magistrate was manifestly excessive in all the circumstances. On the hearing of the motion, an additional ground was added alleging that the learned magistrate erred in law in considering himself bound to impose a sentence of imprisonment in the circumstances of the case.
In my opinion, the passages cited by counsel from the learned magistrate's comments in passing sentence do not demonstrate that he considered himself precluded as a matter of law from imposing some other sentence, or that he considered himself bound to impose a sentence of imprisonment. Rather, they indicate that he formed the view that imprisonment was called for after considering the circumstances and evaluating them in a proper way. What he said cannot be characterised as an error of law, and on this ground, the motion cannot succeed.
I turn now to consider the original ground.
In the course of proceedings before the Court of Petty Sessions, the prosecutor told the learned magistrate that between the 13 May 1985 and 27 October 1986, the applicant had been in receipt of unemployment benefits from the Department of Social Security. During that time, she completed, signed, and presented to the Department, 38 applications for unemployment benefits in each of which she indicated that she was not engaged in paid employment for the fortnightly period covered by each form. The Department of Social Security subsequently discovered that the applicant had been employed during the period in question.
She was interviewed by officers of the Department on 16 December 1987 and signed a record of interview admitting her failure to advise the Department of her employment and her earnings. She was overpaid a total amount of $6,404.76 as a result of the commission of these offences. The prosecutor advised the learned magistrate that these moneys had been partially recovered and he sought a reparation order in respect of the balance. He drew the learned magistrate's attention to the fact that the applicant had no previous convictions. None of these facts were contested. In the course of this appeal, counsel for the applicant submitted that there were ten significant factors of mitigation which the learned magistrate should have taken into account and which he either overlooked or gave insufficient weight to. Those factors were as follows:
1 That the applicant's life generally had been unfortunate. She was married at an early age and had given birth to and nurtured six children; also she has a husband with a serious alcohol problem. She is now aged 45 years.
2 That when she commenced her fraudulent conduct, the pay which she was earning from her then existing employment was variable and intermittent.
3 That she had embarked upon a fraudulent course of conduct as a result of pressing financial needs arising from debts incurred by herself and her husband. In addition, she had been importuned by her sons into making substantial payments of money to them.
4 That she had exhibited a genuine remorse.
5 That she had made partial restitution of the moneys obtained from the Department of Social Security either personally or by arrangement with her husband by way of deduction from his unemployment benefit.
6 That she pleaded guilty to the charges and had made frank admissions to the investigators.
7 That she had an unblemished record with no prior conviction for any type of offence during her life time.
8 That there was no reasonable likelihood of her committing a similar offence in the future.
9 That the charges were "stale" when laid in that she had committed the last offence eighteen months prior to the institution of proceedings against her.
10 That the applicant had voluntarily desisted from her fraudulent course of conduct.
During the course of proceedings in the Court of Petty Sessions, counsel for the applicant addressed the court at length and in his submissions, he elaborated on each of the points numbered one to ten which I have listed above. In the course of making comments in passing sentence, whilst it is plain that the learned magistrate did not deal specifically with each point individually, there is no reason to believe that he either misconceived the arguments that had been addressed to him, or that he overlooked any matter of significance; nor do I consider that he failed to comply with s17(A) of the Crimes Act or that his approach in any way conflicted with the principles referred to in that section.
Counsel for the respondent pointed out, correctly, in my opinion, that although many of the cases dealing with sentencing for dishonesty differentiate between an offender who commits a crime for "need" rather than "greed", it is not always possible or desirable to characterise a particular offence as falling neatly into one category or the other. It is plain that the learned magistrate did not regard this case as one involving a desperate need, although he did consider the applicant's financial circumstances and the factors which had created those circumstances. In my opinion, the views which he expressed on this aspect of the matter were views which he could properly hold and were fully justifiable. In the course of argument I was referred to many cases in which the proper approach to sentence in cases involving Social Security fraud has been discussed. Notably, Laxton v Justice (1985) 38 SASR, p376, a decision of the South Australian Supreme Court, and several decisions of this court, namely, Wanders v. Gibson, 251986 (Cox J); Fisher v. Gibson, 481986 (Neasey J.); Williams v Gibson, 501986 (Underwood J.) and Smith v. Gibson, 81988 (Underwood J.). There is no need to review the principles discussed in those decisions, which appear to me to be compatible with each other in all aspects relevant to the present case, and with respect, I agree with the views expressed in those decisions. However, I venture to repeat what I said myself in Clarke & Ors v Smith B26\1987:
"Whilst it is true that dishonest offences against public revenue are prevalent at the present time, I do not think that of itself requires a court to impose a more severe sentence than it would in the case of private fraud. It is submitted however that the complaints before the learned magistrate involve a substantial sum of money in total and demonstrate persistent dishonesty over a substantial period of time. It is submitted by the applicant that in such circumstances, particularly in cases lacking significant extenuating features, a sentence of imprisonment is called for.
It is plain that, although multiple offences should not necessarily attract individual cumulative sentences, (see Bruce v The Queen [1971] Tas SR p22), encouragement should not be offered to those engaged in criminal activity to think that they may as well be hung for a sheep as a lamb. A court's failure to clearly distinguish between numerous repetitive offences on the one hand, and isolated crimes on the other, has this tendency. As a consequence I think it may be said that where in cases of fraudulent conduct a substantial sum is systematically misappropriated by a mature employee over a period of months or years without such mitigating factors as extreme financial need or mental or physical ill–health, a gaol sentence is called for. (See Thomas Principles of Sentencing 2nd edn p152, Pullen v the Queen 1572 (CCA), Reynolds v The Queen 4674 (CCA), and Grant v Davis 2780 (Green CJ)).
In Pullen v the Queen (supra) Burbury CJ said:
'....It must be borne in mind that notwithstanding modern principles of individualisation of punishment, that there are still many serious crimes which come before the Court in which the principle of deterrence overweighs the personal circumstances of the offender. It may be clear to a judge, in this sort of case, where there are multiple crimes of some seriousness, that whatever the previous character and personal circumstances of the offender may be, he has a duty to protect the community by imposing a substantial term of imprisonment.'".
It cannot be disputed that in many respects the applicant has had an unfortunate life. On the other hand, the present case involves 38 separate criminal enterprises by the applicant, as a result of which she secured over $6,400 to which she was not entitled. The offences were committed at more or less regular intervals over a substantial period of time. It is trite to say that it is nothing to the point for the applicant to show that arguments were advanced to the learned magistrate or may now be advanced which may persuade another sentencing authority to take a different course with her if she were coming before that authority for sentence for the first time. This is a motion to review in which an error must be demonstrated. I am not persuaded that the learned magistrate was in error in anything that he said or did. The course he took was not at variance with the course taken by other courts on other occasions in respect of similar offences according to the statistical information placed before me (without objection) by counsel for the respondent. These statistics must be viewed with caution of course, but I do not consider that the learned magistrate erred in principle in taking the course that he chose. In my opinion the motion to review does not succeed and must be dismissed.
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