Supreme Court of SA|2004-05-10|Before: Gray J, Duggan J

SAXON v COMMONWEALTH SERVICES DELIVERY AGENCY No. SCCIV-04-230 [2004] SASC 118 (10 May 2004)

1 DUGGAN J. The appellant has appealed against a sentence imposed on him in the Adelaide Magistrates Court for 13 offences of recklessly making a false statement contrary to s 212 of the Social Security (Administration) Act .

2 The offending took place between 30 May 2002 and 27 November 2002. The false statements were made on application forms for the payment of Newstart Allowance. The total overpayment made as a result of the false statements was $1,913.77.

3 The magistrate recorded convictions and imposed a global penalty of imprisonment for 12 months. There was a direction that the appellant be released on a bond for three years in the sum of $10.00 after serving a period of three months. An order was made that he be under the supervision of an officer of the Department for Community Corrections for a period of 18 months during the period of the bond. Reparation was ordered in the sum of $1,913.77.

4 The appellant is 30 years of age. He is single and has no dependants. There has been instability in his employment and the appellant's counsel advised the Magistrates Court that the appellant leads a disorganised life. The court was provided with a psychological assessment which stated that the appellant suffers from a dependant personality disorder. It was stated in the assessment that the essential feature of this order is a pervasive and excessive dependence upon others which leads to submissive behaviour, pessimism and self-doubt.

5 I deal first with the complaint in the grounds of appeal that the magistrate erred in placing too much weight on a previous conviction of the appellant.

6 In 1998 the appellant was prosecuted for making false statements in claims for social security payments. There were 24 counts and the offences resulted in overpayments totalling $6,418.84. The appellant pleaded guilty to all counts and convictions were imposed. He was sentenced to imprisonment for six months but released forthwith upon entering into a recognisance in the sum of $200 to be of good behaviour for 18 months.

7 In the course of his sentencing remarks in the present case the learned magistrate said:

"In this case, your prior history and record are factors, which the courts can take into account and must take into account whilst sentencing. Your record however, must not be used in an impermissible way, but it is a relevant factor and very relevant in your case. I do not say that your offending conduct on this occasion was necessarily a continuing attitude of disobedience of the law when retribution, deterrence and protection of the society may call for a more severe penalty, but nor was it an uncharacteristic aberration in light of your past conviction and indeed in light of the accumulated debts to the Department."

8 According to the appellant's argument, these remarks demonstrate error on the part of the magistrate. I am unable to agree. The remarks indicate that the magistrate was aware that he was not to use the previous convictions in an impermissible way. However, he went on to explain that it was not open to argue that this was uncharacteristic conduct. This appears to be a reference to the fact that the leniency which would have been appropriate in the case of a first offender was not appropriate in the circumstances of this case. This approach is in accordance with well established principle.

9 Criticism was also made of the magistrate's comments in relation to debts which the appellant had incurred by reason of overpayments which had been made to him by the department. It was suggested that a series of welfare payments had been made on previous occasions by reason of the failure by the appellant to correctly declare his earnings. These payments, although considered as debts due to the Department, were not made the subject of criminal charges.

10 These circumstances could not be viewed as previous offending. It is true that in the passage quoted above the magistrate referred to them when commenting on the fact that the present offending was not an uncharacteristic aberration. However, in the next paragraph of the sentencing remarks, the magistrate made it clear that he was not taking this information into account in an impermissible way. He said:

"Justice Gray, in the case of Slowiak v DPP (Cth) [2000] SASC 282, mentioned that the courts are not to treat debts accumulated with the Department as prior offences. Indeed, they are not, but it demonstrates a course of conduct, not necessarily criminal conduct, but conduct which placed you, more than anyone else, in a position where you should have been extremely careful, wary and extremely alert to ensure that you would not take any risk of committing further fraud on the Department."

11 In my view this was a legitimate use of the material before the court.

12 It is also my view that, despite the magistrate's remarks in the first quoted passage, the relatively recent previous conviction for similar offences was relevant in so far as it demonstrated a continuing disobedience towards the law. In the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 their Honours said:

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

13 Reference should also be made to R v Gibbings [1936] SAStRp 20; [1936] SASR 36. After referring to cases which establish that previous convictions do not necessarily require a heavier sentence than had been passed in respect of prior convictions and that the smallness of the amount fraudulently obtained is a matter to be taken into consideration when fixing sentence, Murray CJ, who delivered the judgment of the court, said at 37:

"We agree with those decisions, and have quite recently applied them in a case which came on appeal before us, but that affords no ground for supposing that previous convictions are to be entirely disregarded in all cases, or even in cases where the amounts fraudulently obtained have been small. A great deal depends on the nature of the offences and the recency or otherwise of their having been committed. If they are of the same type as the one for which the prisoner stands for sentence, and if they shew a recent course of similar conduct, then, inasmuch as one of the principal objects of punishment is to discourage the commission of crime, the Court would be wanting in its duty if it did not impose a heavier penalty in consequence of the number of offences previously committed. Another circumstance which may properly be taken into account in some cases is whether the sentences previously passed have had any deterrent effect upon the prisoner's criminal disposition, and, if not, whether a severer penalty within the power of the Court will be likely to be more effective."

14 In my view the conviction for the previous offences was relevant for the purposes referred to in the cases to which I have referred. Furthermore, I am of the view that no impermissible use was made of the fact of the previous conviction or the debts which the appellant had incurred by reason of overpayments which had not been the subject of a criminal prosecution.

15 The appellant pleaded guilty to the offences and was entitled to some reduction in sentence by reason of his co-operation with the authorities. The magistrate stated that he reduced the sentence by reason of these considerations, but did not identify the extent of the reduction. The Full Court has stressed the importance of doing so on a number of occasions.

16 In my view a reduction in sentence of approximately 25 per cent would have been appropriate and, in considering the argument of the appellant that the sentence was manifestly excessive, it would be appropriate to assume that the starting point which the magistrate had in mind when fixing sentence was between 15 and 16 months. However, the failure to identify the reduction allowed does not, of itself, justify interfering with the sentence in the circumstances of this case.

17 The next argument advanced by the appellant was that the magistrate failed to give sufficient weight to the appellant's personal circumstances and, in particular, to the appellant's personality disorder, the likelihood that serving a period of imprisonment would exacerbate the appellant's depressive symptomatology and may precipitate the onset of depression. It was also argued that insufficient weight was given to the illness and subsequent death of the appellant's father and the fact that it coincided with the period of offending.

18 At the hearing before the magistrate, the appellant's counsel tendered a report from a psychologist. I have said that the appellant was suffering from a dependent personality disorder. The magistrate said in his sentencing remarks that he carefully perused and considered the contents of the report. However, the psychologist did not specifically comment on any link between the disorder and the commission of the offences. He did refer to it in the context of imprisonment and said:

"Mr Saxon's current mental condition will not respond well to a prison environment. Incarceration is likely to exacerbate his depressive symptomatology and may precipitate the onset of depression. If imprisoned, Mr Saxon would benefit from a structured intervention, with a focus on adjustment and depressive difficulties. The transition into a prison environment may cause significant anxiety for Mr Saxon and he would need to be monitored for deterioration of depressive symptoms."

19 The psychologist also commented on the illness of the appellant's father. However, he appears to have discounted this as being a significant factor in the appellant's offending. He stated in his report:

"At the time of the offence, Mr Saxon reported feeling anxious and stressed as his father was seriously ill. It is probable that he was feeling stressed and anxious regarding his father's health. However, it is more likely that Mr Saxon's offending behaviour is a result of unstable employment and income, poor decision-making and distorted cognitions."

20 In the conclusion which I have reached there is nothing to suggest that inadequate weight was given by the magistrate to matters which are personal to the appellant. These matters must be considered together with the importance of deterrence in the circumstances of this case.

21 There remains the question as to whether the sentence was manifestly excessive. The offending took place over a period of approximately six months. The appellant was required to advise the Department fortnightly of his situation in relation to employment. It would appear that he embarked upon a systematic course of providing false information.

22 The considerations relevant to sentencing in cases involving social welfare fraud were referred to at some length in Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404. In that case the importance of deterrence in cases of deliberate and sustained fraud was stressed although, not to the exclusion of considerations of rehabilitation and other mitigating factors personal to the offender.

23 In my view, the circumstances of the present offending required a custodial sentence. I have already referred to the fact that the appellant's conduct extended over a period of approximately six months. It is true that the total amount obtained was less than $2,000. However, the failure of the appellant to be discouraged by the penalty for the previous offences must place an added emphasis on deterrence when it comes to fixing a penalty for the subsequent conduct.

24 I have reached the conclusion that the penalty imposed was appropriate. No error has been demonstrated in the magistrate's approach to the sentencing process. The appeal must be dismissed.

SAXON v COMMONWEALTH SERVICES DELIVERY AGENCY No. SCCIV-04-230 [2004] SASC 118

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SAXON v COMMONWEALTH SERVICES DELIVERY AGENCY No. SCCIV-04-230 [2004] SASC 118 (10 May 2004)

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