Hrasky v Boyd [2000] TASSC 39

Laxton v Justice (1985) 38 SASR 377; Wright v R (1994) 74 A Crim R 152; R v Rossi and R v Bowman (1988) 4 WAR 463; R v Purdon unreported New South Wales Court of Criminal Appeal 27 March 1997, applied.

Applicant: Commonwealth Director of Public Prosecutions

Judgment Number: [2000] TASSC 39

1 The respondent was found guilty of one count of making a false statement in connection with a claim for a social security payment and 97 counts of knowingly obtaining payment of an allowance that was not payable, contrary to the Social Security Act (Cth) 1991, ss1344 and 1347, respectively. Upon her convictions, a magistrate ordered that the respondent be sentenced to 12 months' imprisonment, but ordered her release forthwith upon her entering into a recognisance in the sum of $5,000, conditioned as follows:

"1 To be of good behaviour and not commit any similar offence against the Social Security Act 1991 for a period of 3 years;

2 To continue to make reparation to the department in accordance with the current arrangement or such other sum that may be agreed or ordered pursuant to Section 20AA of the Crimes Act 1914; and

3 To be subject to the supervision of a probation officer for a period of 12 months and during that period obey the reasonable directions of the probation officer so appointed."

2 The applicant seeks a review of those orders upon the grounds that:

"1 The sentence imposed by the Learned Magistrate was manifestly inadequate in all the circumstances.

2 That the learned Magistrate erred in fact and in law in failing to give sufficient regard and weight to the sentencing policies and decisions from Supreme Courts other than Tasmania in considering sentence."

3 The respondent was aged 63 years at the time the first offence was committed and 68 years at the date of her convictions. She was born in Germany in November 1930. In 1949, she went to live in England and married 12 months after arriving in that country. The respondent trained as a nurse, but has not been in gainful employment since her marriage. There are two children of the marriage, one resides in England and the other in Australia.

4 In 1991, the respondent and her husband emigrated to Australia. Their destination was Tasmania. On arrival in Australia on 17 March 1991, they stayed with their daughter who then lived in Sydney with her family. Two weeks after arriving in Sydney, the respondent's husband suddenly and unexpectedly died. The respondent came on to Tasmania alone and has since lived here by herself.

5 On 16 May 1991, the respondent, then aged 61 years, applied for an aged pension. At that time she was in receipt of $78.21 per month payable by the Equitable Life Assurance Society (UK). She disclosed these payments to the Department of Social Security and that prior to her arrival in Australia, she had applied for a retirement pension payable by the United Kingdom government. Ultimately, payment of that pension commenced and payment of the Australian pension was stopped. The Department of Social Security advised the respondent that the basis upon which the Australian pension had been stopped was the amount she was receiving from the United Kingdom.

6 In 1994, the respondent re-applied for the Australian aged pension. In doing so, she disclosed the receipt of the monthly payments from the life assurance society, but not the receipt of the United Kingdom retirement pension, which was still being paid to her.

7 On 25 July 1994, an officer of the Department of Social Security spoke to the respondent. She asked the respondent if she was in receipt of a retirement pension from the United Kingdom. The respondent falsely said that she was not and thereby committed the breach of the Social Security Act, s1344 of which she was convicted.

8 Payment of the Australian pension commenced on 28 July 1994 and was thereafter paid continuously until 2 April 1998. During this period, the respondent received $31,473.90, to which she was not entitled.

9 Upon a routine check by the Department of Social Security, the respondent again falsely told an officer of that Department that she was not receiving a retirement pension from the United Kingdom. This was not the subject matter of a charge. The matter was followed up and towards the end of 1997, the Department of Social Security made inquiries of its counterpart in the United Kingdom. The United Kingdom department wrote to the respondent and sought her permission to supply information to the Australian Department of Social Security. Upon receipt of this letter, the respondent telephoned the relevant department in the United Kingdom and spoke to an officer who told her that she was not obliged to give her consent to the supply of the requested information. Accordingly, the respondent wrote to the United Kingdom department and asked that her United Kingdom retirement pension not be disclosed to the Department of Social Security in Australia.

10 Counsel for the applicant submitted that the respondent's convictions were with respect to a deliberate, serious and sustained fraud, perpetrated over a number of years and called for the imposition of a deterrent sentence.

11 Before the convictions were imposed, the respondent made 19 prepayments in cash to the Department of Social Security totalling $500 and, shortly before sentence was imposed, the respondent entered into an agreement to repay the balance of the overpayments at the rate of $40 per fortnight, such repayments to be secured by way of an interest free mortgage over her home.

12 The respondent has no prior convictions. The learned magistrate found that the arrangements the respondent made to repay the overpayments indicated remorse on her part. There appeared to have been no special financial need for the commission of these offences, although the learned magistrate speculated that the respondent had difficulty in managing her finances.

Uniformity in the exercise of the sentencing discretion for Federal offences

13 As the motion seeks a review of a sentence imposed for the commission of Federal offences, it is appropriate to have regard to sentences imposed in other jurisdictions for like offences committed in similar circumstances. In R v Jackson (1972) 4 SASR 81, the Full Court of South Australia said, with respect to the imposition of sentence for a Federal offence, at 91 - 92:

"1 Above all, the sentencing judge exercises his discretion in a manner appropriate and just in the circumstances of the particular case.

2 He [sic] will, when exercising State jurisdiction, give effect to sentencing policies expressed by superior courts in his own hierarchy.

3 He [sic] will, when exercising Federal jurisdiction, give effect to sentencing policies expressed by superior courts in his own hierarchy, particularly if the policies have been expressed with respect to Federal offences.

4 He [sic] will, when exercising Federal jurisdiction remember that Australia is one country and that policies laid down elsewhere in Australia by superior courts, although not technically binding on him, ought to receive a very great attention by him, as it is desirable that there should be similarity of approach by sentencing authorities with respect to Federal offences."

14 In Western Australia, Malcolm CJ said in Medina v R (1990) 108 FLR 288 at 292 - 293:

"In a context of offences which are committed against Commonwealth legislation, such as the importation provisions of the Customs Act, it is important that courts throughout Australia adopt a common approach to the sentencing of offenders."

15 The same approach has been adopted in Victoria. In Krasnov & Shlakht v R (1995) 82 A Crim R 92, the Court of Appeal in Victoria said at 95:

"It was submitted that because the offences to which Krasnov pleaded guilty were offences against Commonwealth law, it was important that there should be no significant departure from general sentencing levels obtaining throughout the Commonwealth and so much may be accepted. Uniformity of sentencing, particularly in relation to Commonwealth offences is important. Of course the exercise cannot be pressed too far. The assistance that may be obtained from particular sentences imposed on other persons in other circumstances is necessarily limited."

16 In R v Wong & Leung [1999] NSWCCA 420, Spigelman CJ said, at par92:

"The proposition that sentencing for Commonwealth offences should adopt a similar approach can readily be accepted. It is implicit in the legislative scheme of the Crimes Act that this be so, notably in the provision of s16G itself, which seeks to ensure that sentences actually to be served are comparable, notwithstanding differences in State regimes with respect to the availability of remissions or other reductions. Absent the operation of permissible local factors, similar results should follow from the application of 'uniform sentencing principles' (Leeth v The Commonwealth [1992] HCA 20; (1991-92) 174 CLR 430 at 476. See also Leeth at 470-471 per Mason CJ, Dawson and McHugh JJ; Sir Guy Green 'The Concept of Uniformity of Sentencing' (1996) 70 ALJ 112 at 120-122)."

17 The Crimes Act, s16G appears to have been enacted upon the assumption that there will be uniformity of approach amongst the Australian jurisdictions when it comes to the exercise of the sentencing discretion for Federal offences. It provides:

"If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly."

18 With respect to the imposition of sentence, the learned magistrate articulated correct principle when he said:

"In determining the penalty I am satisfied that this is a serious matter as outlined by the prosecution. I accept that too many people offend against this legislation and that the penalty should act as a very clear, general deterrent to others and also to this defendant not to re-offend."

19 However, counsel for the applicant submitted that by forthwith releasing the respondent upon her entering into a conditional recognisance, the learned magistrate failed to apply the principle he stated.

20 For many years now, Australian courts have emphasised the importance of general deterrence when imposing sentence for what is loosely referred to as social security fraud. In Laxton v Justice (1985) 38 SASR 377, Olsson J said at 381:

"(1) Offences of this type are now prevalent. The offence is difficult to detect and penalties should reflect a concern for the protection of the revenue.

(2) Frauds of this kind must be viewed seriously because they threaten the basis of the social security system which is designed to provide financial security for those in the community who are in need. A deterrent penalty is called for.

(3) It is relevant to regard a continuing series of frauds of this type as increasing the moral blameworthiness of the offender's deceits by way of contrast with single or short term offences.

(4) Whilst it may be proper in cases of first offences of this type accompanied by mitigating circumstances to impose a fine, nevertheless a custodial sentence may well be appropriate in the case of serious frauds unaccompanied by substantial mitigating circumstances."

21 In Wright v R (1994) 74 A Crim R 152 Davies JA and White J said at 160:

"It has been said of the social security fraud cases that they are prevalent and that they are difficult to detect. That is undoubtedly true and those factors are important considerations in the decisions to impose custodial terms in those cases."

22 The same Court, but differently constituted, expressed approval of that statement in Theodossio & Said v R (1998) 104 A Crim R 367 at 372 - 373.

23 The observations of Olsson J in Laxton v Justice (supra) were adopted by the Full Court of Western Australia in R v Rossi and R v Bowman (1988) 4 WAR 463 at 467. The Court there said:

"Reported cases in recent years demonstrate a developing trend towards imposing custodial sentences, even for first offences, in the absence of substantial mitigation circumstances.

The increasing prevalence of these crimes and the ease with which they can be committed requires a sentence which will act as a deterrent to the community in general to refrain from the commission of such and whilst at the same time not making each of the respondents a scapegoat for the purpose of establishing that criterion."

24 In R v Purdon unreported New South Wales Court of Criminal Appeal 27 March 1997 Hunt CJ at CL (with whose reasons for judgment the other members of the Court agreed) said, at 5:

"The rationale stated for the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances 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 has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as 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. Both types of fraud are widespread. 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. See Regina v David Fernanda Medina CCA, 28 May 1990, unreported at 6; Regina v Mears (1991) 53 A Crim R 141 at 145."

25 The same general approach to the exercise of the sentencing discretion for offences of this kind has been exercised by this Court. See eg, Smith v Gibson 8/1988; Aikman v Bourne 69/1992; Young v Marszalek B24/1988; Williams v Gibson 50/1986.

26 Although the respondent has no prior convictions, the number of offences that she committed and the length of time over which she committed them, means that prior good character loses a great deal of its mitigatory weight. The sum of money that the respondent received and to which she was not entitled, was substantial. No special need for her criminal conduct was shown. It is a circumstance of aggravation that the respondent took deliberate steps to maintain her deceitful conduct and avoid detection by directing the United Kingdom counterpart of the Department of Social Security not to disclose to the latter payment of the United Kingdom pension. It is necessary to take into account the respondent's age. It is also necessary to take into account the finding of remorse made by the learned magistrate. There is no appeal against this finding of fact, although the extent of such remorse that the learned magistrate found existed is a little difficult to gauge, having regard to the respondent's plea of not guilty and the lateness of the arrangements that she made to repay the overpayments.

27 I accept the submission of Mr Porter QC for the respondent, that the principles enunciated in Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299 - 300 and Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 apply to a prosecutor's appeal against sentence imposed in a court of petty sessions. See Police v Cadd and Others [1997] SASC 6187; (1997) 69 SASR 150. The application of the "Everett principle" in cases where the Crown appeal is of right, has been recognised by the Tasmanian Court of Criminal Appeal in R v Harland-White 23/1997.

28 I respectfully express some reservations about the strength of the observations made by Hunt CJ at CL in R v Purdon (supra), set out above, for I do not think it can be said of any case that as a matter of principle, persons convicted of social security fraud should necessarily serve a sentence of imprisonment. See R v Whitnall [1993] FCA 271; (1993) 42 FCR 512; Smith v Spiers (1995) 128 FLR 242 at 255 - 256. However, I am clearly of the view in this case that by failing to impose any period of actual imprisonment, the learned magistrate imposed a sentence that was manifestly inadequate. This failure constituted erroneous application of principle. Notwithstanding the application of the restraints on allowing a prosecution appeal against sentence, I am of the opinion that it is necessary to do so here in order to maintain adequate standards of punishment for offences of this kind and of this order. See R v Osenkowski (1982) 30 SASR 212 at 213.

29 In making the following order, regard is had, in particular, to the respondent's age and the double jeopardy principle. The order made in the court below is quashed. In lieu thereof, it is ordered that the respondent be sentenced upon complaint No 98/39547 to a term of imprisonment for 12 months to commence from this day. There will be a further order that at the expiration of six months of that sentence, the respondent be released from custody upon her entering into a recognisance in the sum of $5,000, conditioned that she be of good behaviour for a period of two years from the date of her release from prison. I do not think it is appropriate to place her under the supervision of a probation officer, nor do I think it appropriate that the reparation should be made a condition of her recognisance. There will be a reparation order, but I will need to hear counsel with respect to the amount of such order, the fortnightly rate at which reparation should be made, and the date upon which reparation should commence.

30 In accordance with the Crimes Act, s16F, I explain to the respondent that if she fails to comply with the condition of her recognisance release, she may be summonsed to appear before the court and if a breach has been established, she may be called upon to forfeit the amount of the recognisance, or the order may be revoked and she be required to serve the balance of her sentence. Alternatively, in the event of a breach of the recognisance order, the respondent may be required to perform community service or the recognisance period may be extended. However, it is also possible that no order will be made upon a breach of the recognisance being established. It is further necessary to explain to the respondent that the recognisance may, at any time during its currency, be discharged or varied, pursuant to the provisions of the Crimes Act, s20AA.