Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : BR 42566 of 2004, BR 42567 of 2004, BR 42568 of 2004, BR 42569 of 2004, BR 42570 of 2004

Criminal law and procedure - Appeal against sentence - Overpayment of social security payments - Whether custodial term appropriate - Need for deterrence - Turns on own facts

Crimes Act 1914 (Cth) s 16A(2)(g), s 20(1)(b)

Social Security Act 1991 (Cth) s 1347, s 1350

Social Security Administration Act 1999 (Cth) s 215, s 217

Respondent : Commonwealth Director of Public Prosecutions

Cardile v The Queen [2003] WASCA 72

Chivers v State of WA [2005] WASCA 97

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v Alateras [2004] VSCA 214

Ferrer-Esis (1991) 55 A Crim R 231

Hayward v Hubble [2000] WASCA 416

Johnson v The Queen [2004] HCA 15

Kovacevic v Mills (2000) 174 ALR 77

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lutter v Hubbard [2000] WASCA 248

Markarian v The Queen [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59

Playle v The Queen [2004] WASCA 86

R v Jennifer Rose Purdon, unreported; CCA SCt of NSW; Library No 60659 of 1996; 27 March 1997

R v Rossi (1988) 4 WAR 463

Ralph v Nawrojee [2003] WASCA 5

Rigby v Moreland [2005] WASC 150

Shooter (1997) 97 A Crim R 581

Stapleton v The Queen [2004] WASCA 130

White v The Queen [2003] WASCA 197

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Director of Public Prosecutions (Cth) v Angelo Alateras [2004] VSCA 214

Director of Public Prosecutions (Cth) v El Karhani (1999) 21 NSWLR 370

Heryadi (1998) 98 A Crim R 578

Nunn v Kinnon (1988) 4 WAR 459

Oancea (1990) 51 A Crim R 141

Olbrich [1999] HCA 54; (1999) 108 A Crim R 464

R v Keir [2004] NSWSC 1194

R v Niketic [2002] NSWCCA 425

Sinclair (1990) 51 A Crim R 418

Strong [2003] NSWCCA 123; (2003) 141 A Crim R 56

1 HASLUCK J: The appellant, David Andrew Harding, is pursuing an appeal against certain sentences imposed in the Magistrates Court at Broome on 30 September 2005. On 14 November 2005 leave to appeal was granted in respect of all of the grounds the subject of his notice of appeal dated 28 October 2005. I will turn to the grounds of appeal shortly.

2 The appellant was charged with five offences to the effect that he received social security benefits that were only payable in part contrary to certain provisions of the social security legislation in respect of different periods of time.

3 The subject legislation was amended during the course of his offending and it seems that this had a bearing upon the manner in which the charges were formulated. In summary, charge 42566 concerned the obtaining of $2290.20 between 4 August 1999 and 20 March 2000, contrary to s 1347 and s 1350 of the Social Security Act 1991 (Cth). The effect of those provisions is that a person who knowingly obtains a social security payment which is only payable in part is guilty of an offence.

4 The four other charges were brought pursuant to s 215 and s 217 of the Social Security Administration Act 1999 (Cth), being offences of essentially the same kind, that is charge 42567 for the obtaining of $2782.52 between 21 March 2000 and 18 July 2000; charge 42568 for $3513.35 between 28 March 2001 and 1 October 2001; charge 42569 for $10,273.63 between 2 October 2001 and 28 January 2003, and charge 42570 for $3804.03 between 9 April 2003 and 19 October 2003.

5 In each case the overpayments in question were Parenting Single Payments known as PPS payments. Payments of this kind are made to a person who is single and who has the care of at least one child having regard to means and income. The recipient is obliged to advise Centrelink of income from employment as this information is used to calculate the rate of entitlement.

6 On the prosecution case the appellant had been in receipt of PPS. He informed Centrelink when he commenced work with the Broome Caravan Park in April 1999. This led to Centrelink ceasing his PPS payments on 10 June 1999. However on 3 August 1999 the appellant advised Centrelink that he had ceased work with Broome Caravan Park although in fact his employment continued. During the period of the subject charges the appellant earned a total of $67,047.59 of which he declared only $210 while continuing to draw PPS.

7 On the prosecution case the total overpayment in respect of the entire subject period amounted to $22,663.73. It appears from the legislation that the maximum penalty for an offence of this kind is imprisonment for 12 months and/or a fine of $6600. The appellant entered pleas of not guilty initially. This led to the matter being relisted for hearing on 29 and 30 September 2005. On 29 September 2005, the appellant notified the Court and the respondent of his intention to plead guilty to all charges.

8 On 30 September 2005, the appellant through his counsel formally entered pleas of guilty in relation to all charges. The plea in mitigation made by counsel on the appellant's behalf referred to his being responsible for the care of a 9-year-old son from a previous relationship, this being the basis for the PPS receipts. Reference was made also to a 2-year-old daughter from a current relationship and certain financial difficulties which were partly due to the appellant's current partner being involved in a car accident in 1997.

9 It was said that the appellant had no previous history of dishonesty and no prior record apart from road traffic offences. In the course of his reasons for decision as appears from the transcript dated 30 September 2005, the learned Magistrate characterised the matters before him as involving fraud over an extended period. It is clear that in the course of exercising his discretion as to the appropriate sentences to be imposed the learned Magistrate gave weight to the fact that a sizeable sum of money was involved and that the offences had occurred over a 4 year period.

10 He referred to the need for deterrence in respect of the conduct complained of, notwithstanding the appellant's personal circumstances, and concluded that there was only one option, namely an immediate term of imprisonment. Towards the end of his reasons the learned Magistrate expressed himself in this way:

"Now, this is $22,000. I don't think you've got any room to argue about that. As I say, over a period of time with lots of things like remorse, personal circumstances, plea of guilty albeit late, they're all matters that I take into account, but the deterrent aspect for this sort of behaviour where it's over four years and involves a vast sum of money, Mr Harding, even taking into account your personal circumstances and that of your partner, there is only one option in my view and that is an immediate term of imprisonment."

11 He then went on to structure the sentences in the form I will come to in a moment. I pause, however, to note that it is apparent from the passage I have quoted that he took account of the appellant's personal circumstances and of the presence of the plea of guilty.

12 The learned Magistrate proceeded to sentence the appellant to 6 months' imprisonment in respect of counts 2566 and 2567 to be served cumulatively and 1 month's imprisonment with respect to each remaining count to be served concurrently. This gave rise to an effective aggregate term of imprisonment of 12 months as from 30 September 2005.

13 His Honour directed that the appellant was to be released after 6 months upon entering into a recognisance release order for a period of 12 months in an amount of $2000 pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). I note that the appellant has now been in custody for three and a half months.

14 Before attempting to resolve the issues raised by the grounds of appeal, it will be useful to look briefly at some of the statutory provisions and legal principles bearing upon an appeal of this kind. Section 7 of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court. By s 8 an appeal may be made on various grounds, including that the Court below made an error of law or fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice. An appeal may be made even if the decision was made after the plea of guilty or an admission of the truth of any matter.

15 By s 14 the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal, notwithstanding that a ground of appeal has been decided in favour of the appellant. The usual practice is for the Court to determine the appeal on the material before the Court below.

16 The relief may take the form of remitting back to the Court below. The task is to balance the public interest in the conviction of the wrongdoer, the interests of an accused person and the pragmatic considerations of cost and efficiency in the administration of justice. As to an appeal against sentence, it is permissible for the Supreme Court to substitute an alternative sentence.

17 It is well recognised that an appellate Court may not substitute its own opinion for that of the sentencing judicial officer below merely because the appellate Court would have exercised its discretion in a different manner. It must be shown by the appellant that the Court at first instance failed to properly exercise its discretion by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to affect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671.

18 Section 16A of the Crimes Act sets out general sentencing principles concerning offences under Federal legislation:

"A Court must impose a sentence that is of a severity appropriate in all the circumstances."

19 Section 16A(2) sets out a list of matters that the Court must take into account. However, it was held in Ferrer-Esis (1991) 55 A Crim R 231 at 237 that the matters should not be regarded as a checklist requiring Courts to make specific reference to each of the matters.

20 It seems that a Court need not refer explicitly to each sentencing option. The conclusion that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate: Shooter (1997) 97 A Crim R 581.

21 By s 17A(1) of the Crimes Act:

"A Court shall not pass a sentence of imprisonment on any person for a Federal offence unless the Court is satisfied that no other sentence is appropriate in all the circumstances of the case."

22 Section 20(1)(b) of the act allows for an early release order of the kind imposed by the Magistrate in the present case. The purpose of such an order is to be explained to the offender.

23 The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. However, it must be kept in mind that the High Court has now approved the instinctive synthesis approach to sentencing with the result that a staged approach to sentencing and attempts to specify the extent of the discount which has been given for a plea of guilty must be addressed with care: Markarian v The Queen [2005] HCA 25, Chivers v State of WA [2005] WASCA 97.

24 It emerges from Cameron v The Queen (2002) 209 CLR 339 that reconciliation of the requirement that a person not be penalised for pleading not guilty, with the rule that a plea of guilty may be taken into account in mitigation of sentence requires the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, to be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

25 It seems to follow that the sentencing Judge must take account of a plea of guilty even in the absence of a clear demonstration of remorse: Stapleton v The Queen [2004] WASCA 130 at par 34.

26 It is apparent from the ruling of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 that the same considerations that are relevant to the term of imprisonment must be revisited in determining whether to suspend the term. The seriousness of the subject offence is a factor which may weigh against suspension.

27 These are serious offences. The decided cases establish that the social security system being based on trust is open to abuse with the result that when abuse is discovered, sentences must be salutary.

28 It emerges from cases such as Kovacevic v Mills (2000) 174 ALR 77 and Ralph v Nawrojee [2003] WASCA 5 that imprisonment is likely to be imposed as a sentence in ordinary cases, bearing in mind the importance of deterrence. According to the headnote in R v Rossi (1988) 4 WAR 463 reported cases in recent years demonstrate a developing trend towards imposing custodial sentences even for first offences in the absence of substantial mitigating circumstances.

29 In R v Jennifer Rose Purdon, unreported; CCA SCt of NSW; Library No 60659 of 1996; 27 March 1997 the following principle was enunciated:

"In the case of a fraud upon the social security system a custodial sentence is to be imposed unless there exist very special circumstances justifying some lesser order. The rationale stated for that rule is that the offence is easy to commit, but difficult to detect. It is widespread and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and therefore hardship to those whose need is urgent. It also reflects a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these.

The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer."

30 Put shortly, the decided cases indicate that offences of this type must be viewed seriously because they threaten the basis of the social security system which is designed to provide financial security for the needy in the community. Frauds on the social system are both prevalent and difficult to detect. Penalties must therefore reflect a concern for the protection of the revenue and serve the purpose of personal and general deterrence.

31 Anderson J observed in Ralph v Nawrojee (supra) at par 38 that it is quite common for sentences for offences against the social securities legislation to be partially suspended in the case of first offenders. That approach was applied by the Full Court in that case in respect of a young single man who fraudulently claimed $140 per week in social security instalments throughout a period of eight months. In that case the offender had a record of court appearances for other offences including for a burglary and for reckless driving. The overpayments in that case amounted to $4525.27.

32 The appellant pleaded guilty and was sentenced to imprisonment for nine months with an order that he be released after serving 3 months on condition that he enter into a bond to be of good behaviour for 12 months with a security of $2000. The Full Court was persuaded to reduce the head sentence to 6 months with provision for the offender to be released forthwith as he had spent 28 days in custody.

33 The general rule is that a fixed term of imprisonment is to be served concurrently with any other fixed term unless the Court directs that it be served cumulatively. It is necessary in such cases to identify the head sentence. However, the totality principle requires a sentencing officer who has passed a series of sentences, each properly calculated in relation to the offence, to consider whether the aggregate is just and appropriate. This may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate, Mill v The Queen (1988) 166 CLR 59 at 63.

34 In Johnson v The Queen [2004] HCA 15 the High Court recently affirmed the rule in Pearce v The Queen (1998) 194 CLR 610 at 623 that an appropriate sentence for each offence be fixed followed by consideration of cumulation or concurrence and then by questions of totality. To the extent to which two or more of the offences contain common elements, it would be wrong to punish the offender twice with the result that concurrence is appropriate where there is essentially one transaction or commonality is evidence. This is consistent with the instinctive synthesis approach to sentencing mentioned earlier. The ultimate decision as to the appropriate aggregate sentence is arrived at by reference to the totality of the criminality involved in all of the offences.

35 I pause to note that the course of offending in the present case might seem at first glance to have taken place over one extended period. However, in imposing sentences it appears that the learned Magistrate took account of the fact that the first two charges, being 2566 and 2567, albeit continuous in time, were separated by legislative amendment; likewise for the third and fourth charges with the fifth charge standing alone. There were in effect three separate periods within the 4 year span.

36 The learned Magistrate did not refer explicitly to the totality principle, but the imposition of two significant cumulative terms in respect of the first two charges as a means of reflecting the legislative changes with lesser concurrent terms for the remaining charges shows that he sought to make suitable adjustments to the sentences that might otherwise have been imposed in respect of each offence by drawing upon the totality principle.

37 The intention was clearly to arrive at an effective aggregate term which would reflect the overall criminality having regard to the operative legislative regime.

38 Let me now turn to the grounds of appeal. The first ground on the notice of appeal is that the sentence imposed by the learned Magistrate was manifestly excessive, in particular having regard to the appellant's plea of guilty, the appellant's personal circumstances, the appellant's partial and continuing reimbursement of funds obtained by him and the method of calculation of the totality of the sentences.

39 At the hearing of the appeal before me counsel said that the remaining grounds of appeal would not be pressed subject to leave to amend being allowed along these lines; namely that the first ground of appeal be expanded to include an assertion that the learned Magistrate erred in treating the matters as cases where the principle of deterrence in sentencing overrode the principle of rehabilitation and further in failing to give proper weight to the mitigating factors relevant to the circumstances of the appellant's family.

40 The appellant also sought and obtained leave to substitute further grounds being, second, the learned Magistrate erred in law by finding that there was only one sentencing option which was an immediate term of imprisonment when the case law does not support such a finding and such finding is contrary to s 17A(1) of the Crimes Act; third, the learned Magistrate erred by imposing a sentence that was manifestly excessive by not making a release order for the appellant to be released after a lesser period of time than the 6 months ordered pursuant to s 20(1)(b) of the Crimes Act having regard to the matters now set out in the previous ground; fourth, the learned Magistrate erred in fact and law by giving no discount for the appellant's plea of guilty contrary to s 16A(2)(g) of the Crimes Act and relevant case law authority.

41 Counsel for the appellant addressed these amended grounds of appeal in the course of argument and relied upon various decided cases including Lutter v Hubbard [2000] WASCA 248 and Hayward v Hubble [2000] WASCA 416. The latter case deals with the question of whether deterrence should be allowed to displace other considerations such as rehabilitation.

42 Reference was made also in the appellant's outline of submissions dated 13 January 2006 to Director of Public Prosecutions (Cth) v Alateras [2004] VSCA 214 in which it was said that the difficulty of personal circumstances can be used to ameliorate a penalty in cases of social security fraud.

43 It was said on behalf of the appellant at the hearing as to his personal circumstances that the appellant's son, in respect of whom PPS payments were obtained, was at all material times in sole custody and care of the appellant.

44 The child was then 2½-years-old and the mother left him with the appellant in Broome and moved to Perth with her new partner. A few weeks later the mother returned to Broome and then, under the pretext of exercising visitation rights for a few hours, flew back to Perth with the child.

45 The child was subsequently returned to the appellant pursuant to a recovery order issued under s 67 of the Family Law Act 1975 on 8 February 1999 which was directed towards the Marshall of the Family Court and all State and Federal Police.

46 I pause to note that in the course of argument at the appeal I received court documents bearing upon those matters and the same were marked as Exhibits A and B.

47 It was said further that the appellant was granted PPS on 15 December 1998 after he approached Centrelink for food vouchers and assistance with rental payments. During the following six months he informed Centrelink, as he was required to do, of each change in his circumstances relevant to his PPS.

48 It was said that he advised of the removal of the child by the mother and return of the child to him and on two occasions that he had resumed paid employment at the Broome Caravan Park. I note in passing that these were not matters substantiated by evidence in the course of the mitigation plea before the learned Magistrate. I feel obliged to observe, as I did in the course of argument, that a guilty plea denotes an acceptance of the essential elements of the charge which in this case imports the knowing and thus deceitful receipt of overpayments. It has already been noted that the overpayments were substantial and were received over an extensive period.

49 As to the amended grounds of appeal the respondent emphasised, having regard to Lowndes case (supra), that it was necessary for the appellant to establish that the Court at first instance failed to properly exercise its discretion by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to affect the decision.

50 In the present case it was said that the learned Magistrate properly took into account the appellant's plea of guilty, noting its lateness and his personal circumstances. Reference was made to the previously decided cases including Ralph v Nawrojee (supra) which indicated that these were serious offences in respect of which sentences must be salutary bearing in mind the importance of deterrence.

51 Counsel submitted that in respect of five offences a maximum sentence of 5 years' imprisonment was available to his Honour to appropriately reflect the seriousness of the appellant's criminality.

52 The amount involved and the sustained nature of the fraud called for a term of immediate imprisonment. There was a need for some cumulation of sentences in order properly to reflect the appellant's criminality and changes in the legislative regime. Continuing offences of this kind could not be said to be part of one transaction. The totality principle allowed for adjustments of the various sentences to be made of the kind reflected in the learned Magistrate's ruling.

53 It was said also that the repayments made by the appellant as at the date of sentencing amounted to $2745.22, comprising five separate payments over 10 months. While s 16A(2)(f) of the Crimes Act requires reparation to be taken into account, in the present case, given the amount of the overpayment, it was a minor mitigating factor at best having regard to the fact that the appellant was in full time employment during the period in question.

54 A total sentence that represented one-fifth of the maximum available could not be said to be excessive in the circumstances of the present case when proper allowance was made for the extent of the appellant's criminality. Counsel for the respondent submitted that the only appropriate disposition was one of immediate imprisonment having regard to the scale and duration of the appellant's offending. The need for deterrence outweighed the subjective mitigating factors relied upon by the appellant.

55 The learned Magistrate's failure to refer specifically to the prospects of rehabilitation or to the effect that any sentence or order under consideration would have on the appellant's family or children could not be regarded as an appealable error, bearing in mind the rule that factors to be taken into account and the nature of sentencing are not to be treated as in the nature of a checklist. Further, there was no evidence provided in support of the appellant's circumstances or the probable effect upon his family of any sentence or imprisonment.

56 The respondent submitted that on the decided cases a sentence of imprisonment was often thought to be appropriate for first time offenders in the absence of substantial mitigating factors. This approach was approved in Rigby v Moreland [2005] WASC 150 at par 43, notwithstanding that the appellant in that case was required to serve only 3 weeks in custody.

57 I pause to note that, in my view, Rigby's case (supra) can and must be distinguished from the circumstances of the present case. The former case involved a youthful offender and the amount and period of misconduct in question was far less; that is, the offender obtained overpayments in the total amount of $5768.48 over a period of 8 months.

58 According to counsel for the respondent the charges the subject of these grounds were not one offence but involved separate periods of time, different amounts, and reflected different legislative regimes. The reasoning of the High Court in Mills' case (supra) and Pearce's case (supra) allowed for the adjustment of individual sentences including allowance for cumulation and concurrence in order to arrive at an appropriate aggregate sentence reflecting the overall criminality. Moreover each offence could properly be characterised as a separate and distinct act of fraud in respect of the period in question.

59 Counsel for the respondent submitted that the learned Magistrate properly gave consideration to the circumstances of the case including all matters in mitigation and that in his discretion justice required that the appellant serve half of his sentence before being eligible for release.

60 In respect of the grounds relied on at the hearing of the appeal, the respondent submitted that the appellant had failed to demonstrate any error in the exercise of the learned Magistrate's discretion. Alternatively any error so demonstrated did not result in a substantial miscarriage of justice and the appeal ought to be dismissed.

61 Counsel for the respondent also made the following supplementary submissions concerning the discount for plea of guilty issue. First, there is no statutory requirement in s 16A(2) of the Crimes Act to specify the discount in sentence attributable to a plea of guilty. Second, it has been held by the Court of Criminal Appeal in this state that there is no general requirement to articulate the reduction in sentence attributable to a plea of guilty: Playle v The Queen [2004] WASCA 86; White v The Queen [2003] WASCA 197 at par 30; Cardile v The Queen [2003] WASCA 72 at par 12.

62 Third, in the absence of either a statutory or general requirement to articulate the reduction in sentence attributable to a plea of guilty, the failure of the learned sentencing Magistrate to specify what discount was allowed for the plea, particularly in light of the fact that he employed the instinctive synthesis approach to sentencing, does not demonstrate any error of law. Counsel relied upon the recent decision of the High Court in Markarian's case (supra), being the decision I mentioned earlier.

63 I have given careful consideration to the respective submissions. I am of the view that for the reasons set out in the decided cases, especially Purdon's case (supra), the subject offences must be characterised as serious and give rise to a need for deterrence. This need was sufficient and is sufficient in my view to outweigh the personal matters relied upon by the appellant, including allowance for rehabilitation. To my mind the learned Magistrate correctly characterised the offence as involving fraud over an extended period in respect of a sizeable amount.

64 The decided cases establish that in such a case a term of immediate imprisonment is appropriate unless there are extraordinary or special circumstances weighing against such a conclusion.

65 I am of the view that in this case, in referring to there being only one option, namely an immediate term of imprisonment, the learned Magistrate cannot be taken to have been saying that he was bound to impose such a term but rather was simply indicating the realities of the situation as they appeared to him and the pattern reflected in the previously decided cases. It was the end point of the balancing process in which various options were under notice.

66 I am of the view also that the learned Magistrate took sufficient account of the plea of guilty. As I indicated in earlier discussion, he referred specifically to the guilty plea before moving to his final conclusion. The instinctive synthesis approach recently approved by the High Court in Markarian's case (supra) does not require that the extent of the discount must be specified exactly. The making of a conditional release order whereby only 6 months of the term was to be served indicates that allowance was made for the plea of guilty and the appellant's personal circumstances. I consider also, having regard to what was said and done in Ralph v Nawrojee (supra), that a sufficient allowance was made in regard to the conditional release issue.

67 It appears to me that the appellant has not been able to identify any failure to properly exercise the sentencing discretion on the part of the learned Magistrate by acting upon a wrong principle, mistaking the facts or allowing irrelevant matters to affect the decision. That being so, it is not appropriate for an appellate court to intervene in the sentence that was imposed. For these reasons I consider that the appeal should be dismissed.