ARKRIE -v- DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2012] WASC 200 (29 May 2012)

3 The appellant now seeks leave to appeal against both his conviction and sentence. The grounds can be shortly stated. As to conviction, there is one ground, namely it is said that the prosecution notice on which the appellant was convicted was a nullity. I will return to the basis for this contention shortly. As to sentence, there is also one ground of appeal, namely it is said that the sentence imposed was manifestly excessive.

Ground 1 - Was the prosecution notice validly completed?

4 The appellant's counsel filed very lengthy written submissions in regard to this ground. In essence, the appellant contends that the prosecution notice was not completed and signed in accordance with the requirements of the Criminal Procedure Act 2004 (WA). This is said to be because neither the Centrelink officer who signed the prosecution notice, nor the Commonwealth Director of Public Prosecutions who was named as the prosecutor, were persons with the authority to commence prosecutions under s 20(3) of the Criminal Procedure Act.

5 It is submitted that the prosecution notice was therefore a nullity and that this was a defect of such a fundamental nature as to deprive the Magistrates Court of its jurisdiction. This was not an argument raised in the Magistrates Court. No question of jurisdiction was raised until the filing of the appeal notice. The appellant's pleas of guilty were an implicit acceptance of the jurisdiction of the Magistrates Court.

6 Section 8(2) of the Criminal Appeals Act permits an appeal against conviction even where a plea of guilty has been entered. However, an appellate court will approach any attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection', Liberti (1991) 55 A Crim R 120, 122 (Kirby J with Grove and Newman JJ agreeing); see also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler J) and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).

7 Before an appellate court will set aside a conviction based upon a plea of guilty, the appellant must demonstrate that there has been a miscarriage of justice; Hogue [22] and Borsa [20]. There are some well recognised circumstances in which a plea of guilty will be set aside. One of those is where on the admitted facts, the appellant could not in law have been guilty of the offence. It is a form of that exception that is asserted here, namely that there were no valid proceedings before the Magistrates Court upon which a conviction of the appellant could be recorded.

8 Analogous circumstances arose in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, in which case a conviction was set aside because an indictment was signed by a person who was not authorised. In the present case, the question of whether the prosecution notice was valid is complicated by the fact that this was a federal prosecution; that is, it was a prosecution for Commonwealth offences brought in a state court. It is therefore necessary to consider how, and the extent to which, state laws are picked up and applied to prosecutions of this nature.

9 There is another complication. This was a prosecution brought for offences alleged to have been committed in the Territory of the Cocos (Keeling) Islands (the Territory). There is an arrangement between the Commonwealth and the State of Western Australia whereby the courts of Western Australia have jurisdiction, including appellate jurisdiction, in and in relation to the Territory as if the Territory were part of Western Australia: s 15AAB of the Cocos (Keeling) Islands Act 1995 (Cth). That jurisdiction may be exercised either in the Territory or in the State of Western Australia. The acceptance of that conferral of jurisdiction is contained in s 11 of the Indian Ocean Territories (Administration of Laws) Act 1992 (WA). It is pursuant to those arrangements that the Magistrates Court has jurisdiction to deal with offences of the type that are the subject of this case. It is also pursuant to those arrangements that this court exercises appellate jurisdiction.

10 The laws of Western Australia as in force from time to time have been given application to the Territory by s 8A of the Cocos (Keeling) Islands Act. This includes not only statute law but also the principles and rules of common law and equity. The effect is that for the purposes of the applicable laws and the jurisdiction of the courts, the Territory is treated as if it were part of Western Australia, though it remains a territory and the application of laws depends on the exercise of Commonwealth legislative power.

11 The law governing the commencement of criminal proceedings in Western Australia is the Criminal Procedure Act. Amongst other things, the Criminal Procedure Act provides for who may commence a prosecution for an offence. Whilst the Criminal Procedure Act is a law that applies to the Territory, it does not have application of its own force to Commonwealth offences. References in the Criminal Procedure Act to 'an offence' mean 'an indictable offence' or 'a simple offence'. An indictable offence means an offence described by written law as an indictable offence, and a simple offence is any offence that is not an indictable offence; see the definitions in s 3 of the Criminal Procedure Act; see also s 67 of the Interpretation Act 1984 (WA). The term 'written law' is defined in s 5 of the Interpretation Act to mean all Acts for the time being in force and all subsidiary legislation in force. The definition of 'Act' is an Act or ordinance of the Parliament of Western Australia. It can be seen from this that the Criminal Procedure Act provides for the procedure in respect of state offences. This is true whether it is being considered within Western Australia or in its applied context in the Territory. Accordingly, it is necessary to look elsewhere to determine the laws of procedure applicable to the prosecution of Commonwealth offences.

12 The Crimes Act 1914 (Cth) contains a provision dealing with who may commence a prosecution for a Commonwealth offence. Section 13(b) provides:

Any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.

13 The Crimes Act 1914 applies to the Territory because s 3A of that Act states that it applies throughout the whole of the Commonwealth and the territories. Accordingly, s 13 is the source of authority for a person commencing proceedings for a Commonwealth offence in the Territory. The Commonwealth has not, however, enacted a comprehensive code of criminal procedure. Rather, the Commonwealth picks up and applies the state and territory law in each jurisdiction to federal proceedings conducted in that jurisdiction. This is achieved through the Judiciary Act 1903 (Cth).

14 Section 68(2) of the Judiciary Act confers jurisdiction on state and territory courts with respect to persons charged with offences against the laws of the Commonwealth. Section 68(2) provides as follows:

The several Courts of a State or Territory exercising jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

15 The procedure to be followed in respect of persons charged with Commonwealth offences is provided for by s 68(1) which provides as follows:

(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

16 This provision in its terms includes procedures that may precede the commencement of court proceedings such as arrest, custody and bail. Importantly, s 68(1) does not indiscriminately pick up state procedural laws. Rather, it does so only 'so far as they are applicable'.

17 The policy of s 68 is to place the administration of the criminal law of the Commonwealth in each state upon the same footing as that of the state: Williams v The King (No 2) [1934] HCA 19; (1934) 50 CLR 551. The section is to be construed liberally and to use analogy to confer 'like jurisdiction' on State courts: Rohde v Director of Public Prosecutions (Cth) [1986] HCA 50; (1986) 161 CLR 119, R v Carngham [1978] HCA 48; (1978) 140 CLR 487; R v Murphy [1985] HCA 50; (1985) 158 CLR 596.

18 Section 20 of the Criminal Procedure Act provides:

Who can commence a prosecution

(1) In this section, unless the contrary intention appears -

authorised person in relation to an offence, means -

(a) if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or

(b) in any other case, a person -

(i) who is a public authority or an employee of a public authority; or

(ii) who is authorised in writing by a public authority to commence a prosecution for the offence.

(2) If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.

(3) Subject to subsection (2), a prosecution for an offence may be commenced by, and only by -

(a) one of the following acting in the course of his or her duties -

(i) an authorised person in relation to the offence;

(ii) a person referred to in section 80(2)(a) to (e);

(iii) a police officer;

(b) a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.

(4) This section does not affect the operation of an enactment that requires a person's consent, approval or authority to be given for the commencement of a prosecution for an offence.

(5) A person acting in his or her private capacity cannot commence a prosecution, unless another written law expressly provides otherwise.

(6) This section does not limit the functions of the DPP under the Director of Public Prosecutions Act 1991.

(1) section 68(1) does not operate to pick up Western Australian laws that govern the procedure for preferring a charge. This is said to be because it is framed in terms of applying laws to persons who are already charged, that is, in the past tense;

(2) section 68(2) confers a 'like jurisdiction' on State courts; that is, that the jurisdiction for dealing with Commonwealth offences is to be likened to that for dealing with state offences;

(3) that the state jurisdiction of state courts is effectively limited by s 20 of the Criminal Procedure Act which only permits prosecutions to be commenced by certain nominated persons;

(4) that the federal jurisdiction of state courts in Western Australia must also be limited in the same way to be of a 'like' kind; and

(5) since the prosecution here was not commenced by a person who fell within the classes referred to in s 20 of the Criminal Procedure Act, there was no jurisdiction to deal with it.

20 The argument relies upon s 20 of the Criminal Procedure Act having force in respect of Commonwealth matters without being modified by any Commonwealth law; that is, it is submitted that s 20 applies literally to Commonwealth matters and has the effect of limiting who may bring such a prosecution in this state. There are a number of problems with that argument.

21 First, as I have already pointed out, the Criminal Procedure Act does not in its terms have any application to Commonwealth offences. It only does so to the extent that it is applied to federal offences by a Commonwealth law. It is not apparent why it would have an application in circumstances where there already exists a Commonwealth provision dealing with the same subject matter.

22 Secondly, s 20 of the Criminal Procedure Act does not purport to be a provision limiting the jurisdiction of the Magistrates Court. Although it requires that persons who commence prosecutions be authorised, there is no obvious intention to exclude official prosecutions. Indeed, insofar as state authorities are concerned, the section contemplates a broad class of persons who could potentially be authorised. Properly speaking, the provisions which define the jurisdiction of the Magistrates Court are those contained in the Magistrates Court Act 2004 (WA): Part 3 and, in particular, s 11.

23 Thirdly, the words 'like jurisdiction' in s 68(c) do not require the literal transposition of state laws onto a court exercising federal jurisdiction. The very word 'like' contemplates something which is comparable but not necessarily identical. This is a process that proceeds by analogy. This is because to engage in strict literalism will produce absurd results and not further the objective of conferring federal jurisdiction on state courts.

24 Fourthly, in my view, s 68(1) of the Judiciary Act does pick up and apply the Criminal Procedure Act, but only to the extent that the provisions of the Criminal Procedure Act are applicable to persons charged with Commonwealth offences. This requires that the application must take into account the nature of Commonwealth charges and the existence of other Commonwealth laws relating to them, including s 13 of the Crimes Act. Accordingly, insofar as s 20 would have the effect of not permitting a Commonwealth charge to be commenced by a Centrelink official, it would not be applicable as it would be contrary to s 13 of the Crimes Act.

25 Fifthly, there are other provisions of the Judiciary Act 1903 which can also serve to apply state procedural laws but which plainly require that the laws be only applied to the extent that they are consistent with the Constitution and laws of the Commonwealth: s 79 and s 80 of the Judiciary Act. Either of those provisions might serve to apply the Criminal Procedure Act, but without picking up any limitation as to who may commence a prosecution because it would be inconsistent with s 13 of the Crimes Act to do so. This is not to say that the Commonwealth is not accepting the state courts as they are or that it is expanding their jurisdiction: DPP (Cth) v De La Rosa [2010] NSWCCA 194. Rather, the jurisdiction of the State courts is as set out in the Magistrates Court Act and is unaltered. It is simply that the Commonwealth has made provisions of its own as to who it is that may invoke that jurisdiction.

26 In the present case, the prosecution notice was signed by a Centrelink official on 18 July 2011. That officer had lawful authority to commence the prosecution by virtue of s 13 of the Crimes Act. The relevant procedure for completing the prosecution notice was provided for by the Criminal Procedure Act s 23, which was applied by the Judiciary Act s 68(1). That procedure was complied with because the prosecution notice was signed by the officer and witnessed by a justice of the peace.

27 The Commonwealth Director of Public Prosecutions was properly named as the prosecutor on the form as the word 'prosecutor' is defined in s 3 of the Criminal Procedure Act as including, 'A person who in court represents that person'. The Commonwealth Director of Public Prosecutions has authority to conduct and appear in Commonwealth prosecutions by virtue of the Director of Public Prosecutions Act 1983 (Cth).

28 For those reasons, ground 1 cannot succeed and leave in respect of it is refused.

Ground 2 - Was the sentence manifestly excessive?

29 The relevant principles applying to an appeal against sentence are well known. They are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82. That case related to an appeal to the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA), but the principles are materially the same for appeals from magistrates under pt 2 of the Act.

30 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss J); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends on establishing implied error in the type or length of the sentence imposed.

31 The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion. It is not enough that an appellate court considers that it would have imposed a different sentence. It must be established that there has been some error in the exercise of the sentencing discretion, House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505 (Dixon, Evatt and McTiernan JJ).

32 The discretion that the law invests in sentencing judges is of vital importance in the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].

33 In order to determine if a sentence is manifestly excessive, it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ), and McDougall v The State of Western Australia [2009] WASCA 232 [12] [13] (McLure P).

34 The facts of this case were not disputed. They are that between 3 July 2003 and 18 May 2007 the appellant was in recept of Newstart Allowance. This is a government benefit paid to people who are unemployed and looking for work. Each fortnight the appellant was required to complete a form on which he declared that he was not employed. In fact for the following periods he was engaged in paid work: 3 July 2003 to 24 November 2003, 4 December to 10 September 2004, 30 December 2004 to 5 October 2006 and 8 February 2007 to 18 May 2007. He did not disclose that work or the income he received from it. He made false declarations on 82 occasions that he was not working. His total gross earnings from work were $90,419 at an average of $1,102.68 per fortnight.

35 As a consequence the appellant received a total of $30,715 in benefits to which he was not entitled. His offending was discovered by data matching in December 2007, though for reasons that were not explained he was not charged until 18 July 2011. Four charges were preferred, each relating to one of the four periods when the appellant was working.

36 A number of aggravating factors can be identified in this case. First, the total amount defrauded was large, in excess of $30,000. Secondly, the offending involved a course of conduct over several years between 3 July 2003 and 18 May 2007. Thirdly, the offending was in four discrete periods, the longest of which was nine months. The fact that the appellant stopped and then resumed his offending does not reduce its seriousness; to the contrary. Fourthly, significant dishonesty was involved, including the completion of 82 forms which contained false information as to whether the appellant was working.

37 As against the aggravating features, there were some factors which justified leniency. In particular, the personal circumstances of the appellant included the fact that he was the primary carer for his wife's elderly parents; he had a daughter with a serious blood disorder; and his wife and her parents had significant medical conditions which required him to be the primary carer in the family. There was also the factor that being normally resident on the Cocos (Keeling) Islands and there being no prison facilities there, any sentence of imprisonment would mean that he would be brought to mainland Australia and have to serve his sentence with the additional hardship of being separated from his family and community. It was also a fact that being the primary breadwinner, any imposition of a term of imprisonment to be served was likely to result in hardship for the appellant's family.

38 In regard to the reasons why the offence was committed, it was submitted to the magistrate in mitigation that at the time these offences occurred the family was struggling financially. In particular, reference was made to the high food costs in the Territory. It was also pointed out that the appellant had stopped his offending voluntarily and that this was not a sophisticated course of offending. It was also submitted that by the time that the appellant came before the magistrate he had paid off some of the debt, being approximately $11,000. He had no prior history of dishonesty offences and expressed remorse and shame for his conduct. It was put on his behalf that he had no real appreciation at the time of the offences of the seriousness of his behaviour. References were submitted on his behalf that spoke of his community involvement and good character.

39 There has been reference to the fact that there was some delay in the sense that these offences occurred over a period which finished in 2007 but the appellant did not come before the court until several years thereafter. Delay is not usually mitigatory in itself: Scook v The Queen [2008] WASCA 114. Where delay is relevant, it will usually be in circumstances where there has been some manifest progress made towards rehabilitation, or the delay has been such that the offender has arranged their life on the basis of an assumption that they would not be prosecuted. Cases referred to in Scook give examples of such instances. There was no indication of those factors arising in this case. In my view, delay, whilst potentially relevant, was not a factor that could carry great mitigatory weight here. It certainly did not weigh significantly against the serious circumstances of the offending that I have referred to.

40 The maximum penalty for each of these offences was 12 months' imprisonment, a fine of up to $6,600 or both: s 135.2 Criminal Code (Cth).

41 Cases of this type require that significant weight be given to general deterrence: Ralph v Nawrojee [2003] WASCA 5 and Harding v Moreland [2006] WASC 8. Fraud of this nature can be committed with relative ease and is often difficult to detect: Laxton v Justice (1985) 38 SASR 376. Where offending conduct has occurred over a lengthy period of months or years and has resulted in the dishonest obtaining of a large amount of money a prison sentence to be immediately served will be the usual sentence: Kovacevic v Mills (2000) 76 SASR 404 and Nunn v Kinnon (1988) 4 WAR 459.

42 A consideration of sentences imposed in other cases that have gone on appeal indicates that the sentence imposed here was entirely consistent with those other cases. The following is a summary of some of the more comparable cases:

• Esplin v Raffan [2008] WASC 42 - 3 year offending period, $31,777 obtained, 12 months' imprisonment to be released after 6 months on the Newstart charges (there was also a charge relating to Medicare benefits that resulted in an additional penalty).
• Doherty v The Queen (Unreported, WASC, Library No 970518, 14 October 1997) - 4 year offending period, $34,214 obtained, 2 years 6 months' imprisonment to be released after 15 months.
• Macri v Moreland [2008] WASC 194 - period of offending 'substantial' (not specified), $21,884 obtained, 10 months' imprisonment to be released after serving 4 months varied on appeal to allow immediate release on the exceptional basis that the offender was the primary carer for her two seriously disabled children.
• Norton v The Queen [2003] WASCA 86 - period of offending 3 years, $34,332 obtained, 3 years 6 months' imprisonment to be released after serving 21 months.

43 Whilst some of these cases were dealt with on indictment and involved different charges (both in type and number), they do not indicate that the sentence imposed here was excessive.

44 The magistrate gave extensive and detailed reasons and referred to all of the relevant factors. His Honour also considered other options before coming to the conclusion that the only appropriate sentence was one of imprisonment with some time to be served. The time to be served was relatively short, bearing in mind the circumstances of this offending.

In the end, taking into account all those factors as I must take into account, the overriding factor, in my view, is the need to adequately punish you for what you have done. You have turned your mind over a long period of time to make false declarations.

You have made false declarations which have, in the end, resulted you in being paid a very significant amount of money to which you were not entitled to, and although I accept that you have a child with medical conditions which is of some significance and your inability to assist your child will potentially impact upon her, in my view that does not amount to an exceptional circumstance as is required to enable me to release you on a recognisance without having served any time in prison.

Regrettably for you, I take the view that the nature of this offence and the need for an appropriate adequate punishment for the type of offence which has occurred over a long period of time involving a significant amount of money and requiring a need to adequately punish you would require me to impose a sentence which will mean that you will suffer a term of imprisonment.

The court can take into account all of those matters personal to you to which I have referred in making the term of imprisonment - immediate imprisonment that you are to serve as being as low as possible having regard to the cultural circumstances that you are facing and your particular personal circumstances, and in view of that I have concluded that, in the end, the appropriate disposition here is to imprison you for a period of 12 months and for you to be released from prison after having served three months upon which you can enter into a recognisance release order for a period of 18 months in the sum of $5000 (ts 25).

46 The sentence imposed was, in my view, a disposition that was plainly open to the magistrate. If anything, it was a lenient and merciful sentence. It has not been established that the magistrate's discretion miscarried. Ground 2 therefore cannot succeed and leave in respect of it is refused and the appeal is dismissed.