Respondent : Commonwealth Director of Public Prosecutions

Chivers v State of WA [2005] WASCA 97

Garrett v Nicholson (1994) 2 WAR 226

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Kovacevic v Mills [2000] 76 SASR 404

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

Lutter v Hubbard [2000] WASCA 248

Markarian v The Queen [2005] HCA 25

McKenna v The Queen (1992) 7 WAR 455

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Rossi (1988) 4 WAR 463

Ralph v Nawrojee [2003] WASCA 5

Stapleton v The Queen [2004] WASCA 130

Verhoeven v Ninyette (1998) 101 A Crim R 24

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Hayward v Hubbard [2000] WASCA 416

House v The King [1936] HCA 40; (1936) 55 CLR 499

McKenna v The Queen (1972) 7 WAR 455

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Norton v The Queen [2003] WASCA 86

Nunn v Kinnon (1988) 4 WAR 459

R v El Karhani (1990) 51 A Crim R 123

R v Eliasen (1991) 53 A Crim R 391

R v Harradine (1992) 61 A Crim R 201

R v Hart [1999] NSWCCA 2004

R v Hawkins (1989) 45 A Crim R 430

R v Morgan (1993) 70 A Crim R 368

R v Morley [1985] WAR 65

R v Morse (1979) 23 SASR 98

R v Pereira (1991) 57 A Crim R 46

R v Rossi & Bowman (1988) 4 WAR 463

R v Sinclair (1990) 51 A Crim R 418

R v Wright (1994) 74 A Crim R 152

Saxon v Commonwealth Services Delivery Agency [2004] SASC 118; (2004) 88 SASR 382

Verschuren v The Queen (1996) 17 WAR 467

1 HASLUCK J: This is an appeal against sentence by a person convicted of an offence concerning social security payments. The issue concerning leave to appeal will be dealt with in conjunction with the appeal itself. The question is whether the learned Magistrate in the Court below erred in imposing a sentence that was manifestly excessive in all the circumstances.

2 On 2 May 2005 the appellant appeared before the Court of Petty Sessions at Northam on a charge of obtaining payment of a social security payment under the social security law, namely, the Newstart Allowance, between 27 March 2003 and 3 December 2003, knowing that the said payment was only payable in part contrary to s 215(1) and s 217 of the Social Security (Administration) Act 1999 (Cth).

3 Section 215(1) provides that a person must not obtain a payment of a social security payment knowing that the payment is not payable at all or only payable in part. By s 217 a person who contravenes the provision is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.

4 The appellant pleaded guilty to the charge and was remanded on bail for sentencing. I will come to the details of the sentence shortly.

6 The appellant is 23 years of age and first received social security payments in 1999. She began receiving Newstart Allowance payments on 19 December 2002. The form she lodged with Centrelink required her to answer specific questions about any work she may have performed and any money she may have earned during a respective period.

7 During the period of offending from 27 March to 3 December 2003 the appellant submitted seventeen of these periodic forms to Centrelink. On thirteen of those occasions she declared that she had not earned any money when in fact she had actually obtained considerable earnings from the work she performed as a tutor with the Department of Education, Science and Training. On four occasions she did declare some earnings but the amounts declared appeared to have been made up and were substantially less than her true earnings. Overall, she failed to declare $10,121.78 in earnings to Centrelink and thus declared less than 5 per cent of her total earnings. She obtained overpayments in the total amount of $5768.46 over a period of 8 months.

8 The offence arose by positive false written statements. It is significant also that the appellant used two bank accounts. Her Newstart Allowance payments were paid into a Commonwealth Bank account and her work earnings into an ANZ account. The offending was detected by Centrelink in April 2004. It seems that the appellant had previously incurred a Centrelink debt in 2001 for failing to notify Centrelink of information relevant to her Abstudy and Youth Allowance payments which resulted in her obtaining an overpayment of $394.90.

9 The appellant has no prior criminal record and has therefore not previously served a term of custodial imprisonment.

10 I note that the appellant pleaded not guilty originally and a trial date was set. She changed her plea to guilty on 2 May 2005, being the date of her conviction. A pre-sentence report was ordered.

11 On 7 June 2005 the learned Magistrate sentenced the appellant to a term of imprisonment of 10 months commencing 7 June 2005 to be released after 5 months on entering an undertaking to be of good behaviour in the sum of $2000 for a period of 12 months. She has now been in custody for 3 weeks.

12 The learned Magistrate's reasons for decision are reflected in the transcript of the hearing. I will not traverse her reasons in their entirety. In essence, she was of the view that an offence of this kind represents an abuse of trust and is hard to detect. She said that a custodial offence is appropriate unless there are exceptional circumstances. She referred to a lack of remorse, and said that no discount would be given for the eventual plea of guilty, because the plea of not guilty had been maintained right up to the last moment.

13 The appellant filed an application for leave to appeal against sentence dated 14 June 2005. The application is supported by the affidavit of Mr Collins from the Aboriginal Legal Service sworn 14 June 2005.

14 The appellant's legal advisers proceeded to make an application for bail which came on for hearing before me on Wednesday, 22 June 2005. The bail application could not be dealt with at that time because the transcript of the hearing in the Court below was not available. Further, some amendment was required to the description of the respondent and the grounds of appeal. Accordingly, the matter was adjourned with a view to ensuring that the application for bail, the application for leave to appeal and the appeal were to be heard expeditiously. It is against that background that the matter came on for hearing before me some days later on Tuesday, 28 June 2005.

"1. The learned Magistrate erred by imposing a sentence that was manifestly excessive, particularly having regard to:

(i) The appellants plea of guilty.

(ii) The appellants personal circumstances as outlined in the written pre-sentence report.

(iii) The appellants age of 23 years.

(iv) The appellant voluntarily ceasing to offend prior to detection.

(v) The maximum sentence that could be imposed was 12 months.

(vi) The standards of sentencing customarily observed for this offence.

2. The learned sentencing Magistrate erred by imposing a sentence that was manifestly excessive by not making a release order for the appellant to be released forthwith pursuant to Section 20(1)(b) of the Crimes Act, in particular having regard to the matters set out in ground 1(i)-(vi) of this appeal.

3. The learned Magistrate erred in fact and law by giving no discount for the plea of guilty, contrary to section 16A(2)(g) of the Crimes Act, and relevant case law authority.

4. The Learned Magistrate erred in law by finding that 'The courts have repeatedly stated that in respect of offences of this type a custodial sentence is appropriate unless exceptional circumstances exist' when the case law does not support such a finding and is contrary to section 17A(1) of the Crimes Act.

5. The learned Magistrate erred in fact by treating the following factors as aggravating when there was insufficient evidence to come to such a finding:

(a) use of 2 banks accounts

(b) Withdrawal of $4,000"

16 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.

17 Section 7 of the Criminal Appeals Act 2004 (Cth) 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 a plea of guilty or an admission of the truth of any matter.

18 By s 9 leave to appeal is required in all cases. The Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. By s 11, after leave to appeal is given no action to enforce the decision shall be taken except to enforce a sentence of imprisonment.

19 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.

20 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1994) 2 WAR 226.

21 It is apparent from the statutory provisions that if an error is exposed, the Court is not necessarily obliged to quash the decision. However, it seems that unless the Court is persuaded that, properly informed, the Magistrate would have inevitably reached the same verdict, the Court on appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1.

22 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 a wrong-doer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.

23 As to an appeal against sentence, it is permissible for the Supreme Court to substitute an alternative sentence.

24 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.

25 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. Section 16A(2) sets out a list of matters that the Court must take into account. However, it was held in R v Ferrer-Esis (1991) 55 A Crim R 231 at 237 that the matters should not be regarded as a check-list requiring courts to make specific reference to each of the matters. By s 17A(1) 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.

26 Section 20(1)(b) of the Act allows for an early release order of the kind imposed by the Magistrate in the present case.

27 The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. This means that a discount of up to one-third will usually be allowed for a plea of guilty on the fast-track system.

28 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.

29 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.

30 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. In Stapleton v The Queen [2004] WASCA 130 Malcolm CJ said at par 34:

"In my opinion, remorse is not a precondition to a reduction in sentence for a plea of guilty, but it is a relevant factor. A bare plea of guilty, even at a late stage, may well be a mitigating factor: Atholwood v R [1999] WASCA 256, per Ipp J, at [9]. A late plea or a plea which is inevitable will nonetheless attract a substantial discount where it is made to facilitate the course of justice: Cardile v R [2003] WASCA 72, per Wheeler J, at [45]; Radebe v R [2001] WASCA 254; (2001) 162 FLR 313 at [16] - [28], per McKechnie J (with whom Malcolm CJ and Anderson J agreed). In Mada v R [2003] WASCA 1; (2002) 137 A Crim R 460 at [9] Murray J regarded the decision of the High Court in Cameron (supra) as making it clear that the 'mitigatory power of a plea of guilty will depend upon a proper evaluation of its worth'."

31 Let me now return to the circumstances of the present case.

32 It is said on behalf of the appellant that she is 23 years of age and has no prior convictions. She has not served a prior term of imprisonment. Counsel conceded that she changed her plea and entered a late plea of guilty. However, he points to the decided cases I have just mentioned and submits that the learned Magistrate fell into error in apparently failing to give proper weight to the plea of guilty (albeit late) and in proceeding from the premise that a custodial term had to be imposed in the absence of special circumstances. I remind myself in passing that the appellant has now been in custody for a period of 3 weeks. I note also, as appears from the transcript at 45 of the Appeal Book, that it was put to the learned Magistrate by counsel from the Aboriginal Legal Service that in regard to her plea the appellant was guided by her legal advisers.

33 Counsel for the respondent submitted that the offence is serious and the misconduct in question was perpetrated over a lengthy period of time. She referred to the principles applicable to this kind of offence which I will come to in a moment.

34 Let me now draw together the matters I have touched on.

35 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. It emerges from cases such as Kovacevic v Mills [2000] 76 SASR 404 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 demonstrated a developing trend towards imposing custodial sentences even for first offences in the absence of substantial mitigating circumstances.

36 The learned Magistrate in the present case clearly had principles of this kind in mind in proceeding to impose a sentence of imprisonment in respect of the offender's engagement in a prolonged and continuous fraud. She noted that during the period 27 March 2003 to 3 December 2003 seventeen forms were submitted and on thirteen occasions the offender failed to declare work done and money earned. A total of $5768.46 was received over 8 months to which the offender was not entitled.

37 Nonetheless, the decided cases recognise that in addition to deterrence mitigating circumstances, rehabilitation and considerations of mercy and leniency must also be considered in each case. The decided cases do not establish that imprisonment is required save for exceptional cases. In the end, the circumstances of the matter, viewed as a whole, must inform the exercise of the sentencing discretion. Accordingly, to my mind, the learned Magistrate was in error in asserting that a custodial sentence is appropriate unless exceptional circumstances exist. I am prepared to uphold the appeal on that ground.

38 I am conscious also that the sentencing principles set out in s 16A of the Crimes Act require at sub-paragraph (g) that the Court take into account the fact that a person has pleaded guilty to the charge in respect of the offence. The plea of guilty in the present case came late. Nonetheless, I consider that some weight should have been given to it for the reasons given in Cameron (supra) and Stapleton (supra). The learned Magistrate, however, was adamant that the offender could "expect no discount for the eventual plea of guilty".

39 It is apparent that the learned Magistrate, in weighing up the mitigating factors, took account of the fact that the offender was comparatively young, being 23 years of age, and had no prior convictions. However, the question arises as to whether the learned Magistrate gave sufficient weight to these factors. I must keep in mind also that the maximum sentence for the offence is a term of imprisonment of 12 months.

40 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 8 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. The appellant pleaded guilty and was sentenced to imprisonment for 9 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 the 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.

41 In the present case, I consider that the learned Magistrate erred by imposing a sentence that was manifestly excessive for the reasons reflected in the first and third grounds of appeal being essentially that insufficient weight was given to the appellant's plea of guilty and to her personal circumstances. I am of the view also that the learned Magistrate was in error in assuming that exceptional circumstances had to be demonstrated in order to ameliorate the term of imprisonment of 10 months she had in mind to impose which included a custodial component of 5 months.

42 These rulings in favour of the appellant are made in response to grounds 1, 3 and 4 of the appeal. For the sale of completeness, I have to say that I am not persuaded that the appeal should be allowed on grounds 2 and 5. As to ground 2, counsel for the respondent submits correctly that the Court must arrive at its conclusion and is not obliged to accede to a submission made by either counsel as to the appropriate sentence. I refer to the observations to that effect made by McKechnie J in Lutter v Hubbard [2000] WASCA 248 at par 9. As to ground 5 I am not persuaded that the Magistrate erred in fact as to the matters mentioned in this ground. The material facts put to the Court included reference to two bank accounts and those facts were accepted by defence counsel (see AB27).

43 It follows from the allowance of the appeal on grounds 1, 3 and 4 that, in my view, the sentence imposed was manifestly excessive and must be reviewed. However, for an offence of this kind, for the reasons given in Nawrojee (supra), the starting point must be a sentence of imprisonment. It then becomes necessary, having regard to the decided cases and my earlier observations, to give proper weight to the appellant's personal circumstances including her age, the absence of any prior convictions, and her plea of guilty which must be regarded as facilitating the course of justice, and given some weight accordingly. I accept that her maintenance of a plea of not guilty was partly referable to legal advice and the entitlement of a litigant to put up a not guilty plea as part of the trial process. I give some weight also to the proposition counsel for the appellant extracted from McKenna v The Queen (1992) 7 WAR 455 at 468 (Seaman J) that youth is a significant mitigatory factor (although normally its weight decreases as the offender moves through the early 20s) and so is the need to attempt rehabilitation of youthful offenders. In this case, the appellant was only 21 years of age at the time of the offence and had no prior convictions. The personal references submitted to the Court speak well of the appellant.

44 I consider that the term of imprisonment imposed in the present case should be reduced from 10 months to a term of imprisonment for 6 months. Having regard to the fact that the appellant has already served 3 weeks in custody, I consider that an order should be made for her release forthwith upon entering into an undertaking to be of good behaviour in the sum of $2000 for a period of 6 months.

45 When I draw all these factors together leave should be granted and the appeal should be allowed upon the basis I have just described. As the appellant is to be released immediately, the application for bail falls away.

46 I am required to explain (as the Magistrate did previously) that the purpose of the order I have made is to reflect the serious nature of the offence and to reinforce the deterrent effect of the sentence. If the appellant agrees to be bound by the order she will be released from custody forthwith and provided that she is of good behaviour for 6 months commencing 7 June 2005 she will not be subject to any further penalty.

47 However, if she fails to comply with the condition of the order she may be brought back before this Court and imprisoned for the remainder of the sentence. The appellant is also ordered to pay restitution in the amount of $5758.46. I will hear from the parties as to whether any further orders are required.