R v Smith [1999] QCA 518

Court of Appeal (Qld)|1999-12-15|Before: Pincus and Thomas JJA and Chesterman J, Judgment of the Court

[1] THE COURT: The applicant seeks to appeal against a sentence imposed on him for defrauding the Commonwealth[1].

[2] He was sentenced to two and a half years imprisonment with an order for release after serving 12 months upon giving security by recognisance in the sum of $1,000 conditioned that he be of good behaviour for two and a half years. It was further ordered that the sentence be served concurrently with a two year sentence imposed in the District Court some seven months previously.

[3] The applicant who is aged 34 has a substantial criminal history. It commences in 1982 in the Geelong Magistrates Court with convictions of two offences of theft of a motor car. He has been convicted of numerous offences of dishonesty including possession of stolen property (15/12/83), burglary and theft (15/8/84), receiving stolen property (29/7/88), unlawful use of a motor vehicle (23/10/89 and 8/12/94), possession of a motor vehicle with intent to deprive (6/12/94 and 12/1/99) and possession of property suspected of being stolen (10/7/98). The offences for which he was serving time when sentenced on the present matters were five charges of possession of a motor vehicle with intent to deprive and with circumstances of aggravation.

[4] The indictment contained a single charge incorporating numerous fraudulent claims made by the applicant for Social Security benefits in three different names during a period of approximately three years (15 March 1995 to 12 February 1998). The total amount of benefits paid to the applicant to which he was not entitled was $32,416.78. There had been no repayment of this amount. It was urged on his behalf below that his benefit was slightly less than this because $3,000 of it had been paid into a bank account of which he had lost control. We find it difficult to see how any real mitigation lies in that fact. His offences were described as double and treble dipping and as revealing very deliberate fraud. Some degree of planning and forethought no doubt occurred but it could not be described as intricate or sophisticated. Some of the payments were obtained whilst he was in prison under a different name.

[5] Circumstances of mitigation include the fact that he pleaded guilty upon an ex officio indictment and cooperated when apprehended. He would also seem to have made some commendable efforts at rehabilitation since he was imprisoned in February 1998. It would seem that from that time forward he served various terms including some for bail offences, and some pre-sentence custody on the five offences upon which he was sentenced in January 1999. Various certificates show that he has successfully undertaken courses in prison and has impressed the prison chaplain.

[6] The main point made by the applicant in support of his appeal was the fact that he had become eligible for release to work under the earlier sentence when he was charged with the present matters. A consequence of this was that his low security classification was changed and he was moved from Numinbah back to Moreton where conditions were considerably more difficult. Inconvenienced as he may have been by the fact that the present charges were brought, it is not a circumstance that can have any substantial bearing upon the adequacy or inadequacy of the sentence imposed on the present matter.

[7] Counsel for the Crown has pointed out that the learned sentencing judge gave the applicant the benefit of ordering that the present sentence be served concurrently with his existing sentence and that a recognisance release order was made at a point less than the half way mark. The full time release under the existing sentences was not until January 2000. It is true that he had been eligible for release on parole since 8 June 1999, but had not been released prior to the present sentencing on 4 August 1999. The effect of the present sentence is that the applicant will be released pursuant to the recognisance release order on 3 August 2000.

[8] The overall effect of the sentence does not seem at all excessive. The offence involved a substantial amount of money and was committed over an extended period of time. Comparable cases including that of R v Wright[2] support the sentence that was imposed. We are unable to see any reason for interfering with it. We would refuse the application.

[1] Offence under s 29 D of the Crimes Act 1914 (Cth).

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