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[1993] NTSC 13
Supreme Court of the NT
1993-02-19
Kearney J
Original judgment source is linked above.
the complainant to make submissions on the pre-sentence report. 2. The sentence is manifestly inadequate". IS THE APPEAL COMPETENT? (A) NOTICE OF APPEAL SIGNED BY SOLICITOR FOR THE APPELLANT 4. The Notice of Appeal was signed by a legal practitioner "for and on behalf of the Australian Government Solicitor". It is not in issue that it was signed as solicitor for the appellant; it was therefore in accord with r83.05(1) of the Supreme Court Rules. However, these Rules regulate appeals under the Justices Act only "to the extent that no other procedure is provided" in that Act; see r83.03(a). Section 172 of the Justices Act deals with notices of appeal, s203 is a regulation-making power, and Form 63 in the Justices Regulations sets out the form of Notice of Appeal to be used. It indicates that the Notice of Appeal should be signed by the appellant. Section 163(1) of the Justices Act, which gives a "party" the right of appeal, is set out below. Mr Stirk ultimately relied on s29 of the Justices Act as authorizing the solicitor to sign the Notice of Appeal. Section 29 provides:- "Every party TO ANY PROCEEDING BEFORE JUSTICES shall be at liberty to conduct his case or to make his application or his full answer to the charge or complaint (as the case may be) and to have the witnesses examined and cross-examined, by a legal practitioner: - - -" (emphasis mine) 5. I consider that the better view is that s29 does not apply to the appeal process and that the Notice of Appeal should have been signed by the appellant, as required by Form 63. However, the respondent does not take the point and, in the circumstances, it is of a formal nature and I do not consider it renders the appeal incompetent. (b) DOES APPEAL LIE FROM A CONDITIONAL RELEASE BEFORE SENTENCE? 6. The right of appeal to this Court is contained in s163 of the Justices Act which provides, as far as material:- "(1) A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court - - - on a ground which involves - (a) sentence;
as hereinafter provided, in every case, - - -." 7. In this case no "sentence" was imposed, in terms of s163(1), and so on the face of it no appeal lies; cf Bantick v Blunden (1981) 58 FLR 414 and see R v Abedsamad [1987] VicRp 71; (1987) VR 881 and the authorities cited therein. Mr Stirk submitted that s20(3) of the Crimes Act nevertheless allowed an appeal against the order for conditional release; it provides, as far as material:- "(3) Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he is dealt with had been a sentence passed upon his conviction for that offence." 8. It is clear that s20(3) has the effect for which Mr Stirk contends. The appeal against the order for conditional release is competent. BACKGROUND TO THE PROCEEDINGS 9. In August 1992 the appellant, an officer of the Department of Social Security (herein "the Department"), caused a Summons to issue under the Justices Act, charging that the respondent had committed 25 offences under s239(1)(b) of the Act, in 1989 and 1990. Section 239(1)(b) of the Act provides, as far as material:- "A person shall not -
(b) knowingly obtain payment of - - an instalment of - - a - - benefit - - part of which is not payable;
The total overpayment of benefits in respect of the 50 offences was $14,919.93, as at February 1992; before coming to court in November it seems he may have repaid some $428.40. In any event, it appears he has now repaid $628.40, and the amount he owes the Department is $14,291.53. 18. His Worship was informed that the respondent was born on 12 September 1961. He had a prior criminal record in Victoria involving the theft of a motor car and driving unlicensed in 1979 and driving with a blood alcohol reading exceeding 0.05 percent in 1982. His Worship did not refer to these matters when sentencing, and rightly so; they carried no real weight. The penalty for each of the 20 offences charged is a fine not exceeding $2000 or imprisonment for 12 months, or both: see s239(2) of the Act. Section 239(7) of the Act provides that in addition to the penalty imposed, a person convicted may be ordered to repay an amount equal to the amount which he had obtained by his offence; that is, he may be ordered to make reparation. 19. His Worship was referred to the provisions of Division 2 of Part 1B of the Crimes Act which set out the general principles to be applied when sentencing for Commonwealth offences. Section 17A(1) of the Crimes Act prohibits a sentence of imprisonment being imposed unless the court has first considered all other available sentences and is satisfied that no sentence other than a sentence of imprisonment is appropriate in all the circumstances. 20. Ms Cory of counsel for the complainant submitted that a useful rough guide to be applied in deciding when a sentence of imprisonment may be appropriate in terms of s17A(1), was whether the offence was committed for reasons of "need or greed". If the Court considered that the respondent had committed the offences mainly out of "greed", the authorities showed that a sentence of imprisonment could be appropriate. I observe that it is regarded as a common mitigating factor in cases such as this that the offender "was in real financial need and was not motivated by greed"; see Graham v Bartley (1984) 57 ALR 193 at 198. Ms Cory submitted that the present case fell within a "grey area", the continuum between a clear case of "need" and one of "greed". See also R v Scherf (1985) 18 A Crim R 209, on these concepts. 21. Ms Cory handed up a "tariff schedule". This sets out brief details of the facts of the 59 offences under s239(1)(b) of the Act which have been dealt with by Courts of Summary Jurisdiction in the Territory in the 2 years between November 1990 and November 1992. Brief details are given of the offenders, the amounts involved, and the penalties imposed. Six of the cases involved payments higher than this case; 10 cases involved payments of approximately $8,800 - $28,200. In all the cases roughly comparable in amount to the present case, where "need" was held to be a factor in the reasons for the offences, suspended sentences of imprisonment were imposed, sometimes with an order for reparation. By far the most common disposition in the 59 cases (over 52 percent) was a suspended sentence of imprisonment. In about 15 percent of the cases community service orders were imposed. In about 20 percent of the cases the disposition was, as here, by release on Recognizance without passing sentence; in none of these cases, however, was the amount involved more than 30 percent of the amount involved here, the average being less than 16 percent. Only in 2 cases - both involving sums over $20,000, the use of pseudonyms, and a basis of "greed" - were sentences of immediate imprisonment imposed. Ms Cory wa le to take the learned Magistrate to the schedule in detail as his Worship indic t he would in any event seek a presentence report as the offences involved "qui ud on the revenue" (p4), were "serious, and (the respondent) obviously must be looking at imprisonment, with the amount of money and the time over which it took place, and knowingly (doing) it" (p11). 22. Ms McCrohan of counsel for the respondent then made submissions in mitigation. She noted that the offences had occurred over 2 periods of 8 and 16 months, broken by a period of 2.5 months when the respondent was in employment. She informed the Court that he intended to repay the amount outstanding at the rate of $100 per week, with the result that the amount would be repaid within about 3 years. She informed the Court of the respondent's antecedents and work record. 23. Ms McCrohan stated that CN's income varied considerably from week to week, from $45.80 on one occasion to $547.35 on another. Exhibit 1 gives the details of CN's salary payments; the amount of $45.80 was for a pay period some 2 months prior to the first charge (charge no.6) upon which the respondent was ultimately convicted. For the greater part of the period within which the respondent made his claims, from 16 November 1989 to 11 December 1991, Exhibit 1 as far as it goes - it shows no details after 4 July 1991 - shows that CN earned income at quite a consistent weekly rate. She appears to have worked during nearly every week. 24. Ms McCrohan informed the court that the respondent had had to pay some $800 in debts from a previous relationship and had debts of $1200 for car rental and $1000 upon his credit card when he arrived in Alice Springs in 1989. He and CN pay rent of some $500 per month at the caravan park where they stay. Their food bill is about $400 per month. The benefits which he obtained were approximately $500 per month and, she submitted, he spent it on general, necessary, modest living expenses and not on frivolities. 25. Ms McCrohan said that the respondent had now been counselled and was planning his budgeting. She referred to his full and frank admissions when he was interviewed and the fact that he had been in steady employment from 1 October 1992, earning $200 net per week. CN is now steadily employed at $363 per week. Ms McCrohan asked for clemency on the basis that this was a case more towards the "need" end of the "need - greed" spectrum, and the respondent's culpability was towards the lower end of the scale, in relation to offences of this type which came before the courts. 26. As to the tariff schedule, Ms McCrohan referred to 5 of the cases where broadly comparable amounts were obtained; in each of these a suspended sentence of imprisonment had been imposed. She submitted that any sentence of imprisonment imposed on the respondent should be suspended and that the Court should give consideration, alternatively, to a community service order or a home detention order. 27. His Worship required that a presentence report be prepared and submitted to the Court in terms of s395(1) of the Criminal Code; to enable this to be done the hearing was adjourned until 19 January 1993 at 10 am. 28. When the Court resumed on 19 January, no-one appeared for the complainant-appellant. I am told that Ms Johnston was engaged in another court at that time, but his Worship was not informed of that and proceeded to sentence in her absence. A presentence report of 7 January 1993 which had been received was passed to Ms McCrohan who submitted that it was "very similar to my submissions" and asked that the Court "particularly take into account the recommendation". 29. The presentence report was the usual carefully compiled document prepared by a Probation and Parole Officer. It dealt in some detail with the respondent's background, education, history of employment, health, his "relevant attitudes", made an evaluation and offered some concluding comments. In the course of the evaluation, the writer expressed his opinion that "a term of imprisonment may not be the most appropriate sentencing option", that "a period of supervised conditional liberty would offer little to the offender", and that "a monetary penalty - - would be difficult (for the respondent) to comply with". He noted that a community service order "may serve as a disciplinary measure and recompense the community", while "home detention may prove to be an inappropriate option"; he considered that "an unsupervised recognizance may serve as a sufficient deterrent in the matter", with the Department ensuring that the respondent's "(voluntary) repayment commitments are upheld". Clearly, these observations were made with the respondent's circumstances in mind. 30. His Worship proceeded to sentence as follows:- "- - - I take into account all that's been put to me. I also take account of the 30 offences that you've asked me to take into consideration in dealing with this. I've read the (presentence) report and I TAKE PARTICULAR NOTE OF THAT REPORT. I'M GOING TO TAKE AN UNUSUAL STEP IN AS MUCH AS NORMALLY IN CASES SUCH AS THIS YOU WOULD BE LOOKING AT IMPRISONMENT, all right. But you understand now your obligations. (His Worship had previously checked with Ms McCrohan that the respondent was prepared to enter into a bond and was making repayment at $100 per week.) What I propose to do is to proceed under section 20, sub-section 1(a) of the . I'm going to convict you on all offences. I'm not going to pass sentence. I'm going to release you in the sum of $1000 in your own recognizance with a condition that you be of good behaviour for 2 years". (emphasis mine) 31. His Worship then explained to the respondent his obligations under the Recognizance and concluded:- "Now as I say it's a step which courts do not usually take because a fraud on the public revenue is considered a serious matter, but IN LIGHT OF WHAT HAS BEEN PUT TO ME, IN PARTICULAR IN THE PRE-SENTENCE REPORT, I'm going to proceed as I've told you." (emphasis mine) THE APPEAL 32. The complainant appealed by Notice of Appeal dated 25 January 1993 on the 2 grounds set out at p2. THE APPELLANT'S SUBMISSIONS: THE FIRST GROUND OF APPEAL 33. As to the first ground, Mr Stirk filed by leave an affidavit by Ms Johnston, in which she explained that she had been at the Courthouse on 19 January 1993 at 10 am, and there:- "- - - spoke to the orderly who was dealing with the main list and was informed that (his Worship) would be dealing with this matter in Court 2. I advised her that I had a number of matters to attend to that morning and requested that she have me called prior to the matter being called on. Notwithstanding this, I was later advised that the matter had been dealt with in my absence." 34. Mr Stirk submitted that what had then occurred highlighted a need to review the use made by courts of presentence reports. It was clear that in this case his Worship had paid great regard to what was in the report, when sentencing; I accept that. All parties were entitled to know what was in such a report, and to have an opportunity to correct any mis-statements of facts or opinions therein which they wished to challenge, prior to the case being disposed of. I accept that. He referred to R v Webb ; , where the use of presentence reports and the extent to which their contents may be challenged on appeal was dealt with. In that jurisdiction, pursuant to certain statutory provisions, the Judge has a discretion whether or not to disclose a presentence report to the parties. The Full Court at p152 was of the view that if the Judge decided to disclose the report to the parties this should be done - "- - - before the sentence is pronounced in order that the parties may have an opportunity at that stage of dealing, if they so desire, with any of the matters stated in the report. If the report is only made available, as apparently it was in this case, after judgment has been delivered, then difficult and deep-seated questions of policy are likely to arise if it is sought, upon appeal, to adduce evidence relating to matters stated in the report." 35. See also R v Carlstrom ; at 368. 36. Mr Stirk submitted that in this jurisdiction it was fundamental that except in exceptional circumstances a presentence report should be disclosed to counsel for the parties prior to sentence, and they should be afforded an opportunity to make submissions on it, as it constituted material which the Court could take into account when sentencing. As I say, I accept that proposition, which accords with the practice in the Territory. I also note Stanton v Dawson (1987) 3 A Crim R 104, referred to by Mr Allen of counsel for the respondent, which stresses that an accused person cannot be sentenced on the basis of material that is not known to him, and that his legal advisers ordinarily are required to convey to him any material known to them; clearly, that includes material in a presentence report. 37. Mr Stirk ultimately submitted that in the circumstances which obtained here, his Worship was required to desist from proceeding to sentence, and to adjourn proceedings until counsel for the complainant appeared. I do not accept that proposition. A party cannot complain that he was not afforded an opportunity to examine relevant material placed before the Court, when the reason for that lay in his own failure to appear in court at the appointed time without properly first ensuring that the court was informed of the reason he was not there. 38. No doubt the informal, casual arrangement used in this case usually works satisfactorily in a small centre like Alice Springs, but responsibility clearly lies on a legal representative to ensure that any unavoidable inability to attend at the appointed hour is drawn to the Court's attention; this is often most conveniently done through the legal representative of the other party. THE SECOND GROUND OF APPEAL - MANIFEST INADEQUACY 39. As to the general principles applicable on a Crown appeal against sentence, Mr Stirk relied on R v Bird (1988) 56 NTR 17 at 20-21, viz:- "The principles that apply to the consideration of a Crown appeal are now well established by decisions of this court and we need only refer to them briefly. They are to be found in R v Allinson (1987) 49 NTR 38 and R v Anzac ; and in unreported decisions of this court in R v Hogon (now reported at ; ; R v Yates (11 December 1986) and R v Scanlon (20 November 1987). Those principles were earlier conveniently summarised by a Full Court of the Federal Court of Australia in R v Tait and Bartley at 476 in these words: "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or THE SENTENCE ITSELF MAY BE SO EXCESSIVE OR INADEQUATE AS TO MANIFEST SUCH ERROR (see generally, Skinner v R ; at 339-40; R v Withers ; at 394; Whittaker v R ; at 249 Griffiths v R ; at 15-17). Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, A CROWN APPEAL RAISES CONSIDERATIONS WHICH ARE NOT PRESENT IN AN APPEAL BY A DEFENDANT SEEKING A REDUCTION IN HIS SENTENCE. Crown appeals have been described as cutting across 'time honoured concepts of criminal administration' (per Barwick CJ, Peel v R ; at at 233). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the
sentence of the primary tribunal' (per Isaacs J, Whittaker v R, supra, at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court. It must be always borne in mind that this court has a "wide discretion whether or not to interfere, even though it may reach the conclusion that another sentence should have been passed", see Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Jacobs J at 326; [1977] HCA 44; 15 ALR 1 at 29-30". (emphasis mine) 40. This states the law on the subject in the Territory. See also R v Wilton (1981) 4 A Crim R 5 at p6; and R v Ireland (1987) 49 NTR 10 at p27. 41. Mr Stirk also referred to p32 of R v Bird (supra), which deals with considerations which apply when it is sought to contend that a sentence was manifestly inadequate, viz:- "That the manifest inadequacy of a sentence could be relied upon as a ground of appeal was first suggested by Dixon, Evatt and McTiernan JJ in the High Court in Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 520, viz: "- - - it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the (sentencing) discretion has been unsound." 42. Since the Crown relied only on the ground of manifest inadequacy, ex hypothesi Mr Gardner did not seek to pinpoint a specific error to show that the sentencing discretion had been improperly exercised. In the absence of an identified error, an appeal against sentence cannot succeed unless "upon the facts it (the sentence) is unreasonable or plainly unjust"; see the same three judges of the High Court two days earlier than the judgment in Cranssen, supra, in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. What yardstick is to be used to determine whether the sentence imposed was unreasonable or plainly unjust, and thus manifestly inadequate, when considered in relation to the offence and the circumstances of this case? 43. The yardstick was identified by Barwick CJ in Griffiths v R, supra. Having referred to consistency in sentencing as a desirable feature of criminal administration, the Chief Justice said (137 CLR at 310; 15 ALR at 17): "GROSS DEPARTURE FROM WHAT MIGHT IN EXPERIENCE BE REGARDED AS THE NORM MAY BE HELD TO BE IN ERROR IN POINT OF PRINCIPLE" (emphasis ours). 44. The yardstick, then, upon which the Crown could normally rely as a MEASURE OF MANIFEST INADEQUACY OF SENTENCE IS EVIDENCE THAT THE SENTENCE IMPOSED IS WELL BELOW THE EXISTING SENTENCING PATTERN FOR THE PARTICULAR TYPE OF THE OFFENCE CHARGED. This connotes the existence of something in the nature of a tariff". (emphasis mine) 45. Again, this states the law in the Territory. See also R v Hall (1979) 28 ALR 107. As to guidelines for determining manifest inadequacy, Sangster J in R v Flaherty (1981) 28 SASR at 107-8 said: "To determine whether a sentence is erroneous in the sense of being manifestly excessive or manifestly inadequate, it is necessary to consider it against the maximum sentence prescribed by law for the offence, the standards of sentencing customarily followed by the judges dealing with such offences, the place which the offender's conduct in the case under review occupies in the scale of seriousness of offences of that kind, and the personal circumstances of the offender,- - -." 46. I respectfully agree. 47. Mr Stirk submitted that his Worship should have made an order for the repayment of the monies obtained by the respondent on the basis that a reparation order is usually made in cases of this type, as part of the sentencing process, at least when such an order can apparently be complied with by a respondent. The tariff schedule shows that in fact some 15 percent of the 59 offenders were ordered to pay reparation; in some other cases repayment had been voluntarily made or was in the course of being made, sometimes by deductions from benefits to which the offender was legitimately entitled. In some cases it may not have been practicable to seek an order for reparation. 48. Mr Stirk submitted that the tariff schedule showed that the norm for the disposition of cases such as this - that is, cases involving the obtaining of fairly large amounts, the fraudulent conduct extending over a fairly lengthy period - was a custodial sentence, which could be suspended on appropriate terms depending on the particular circumstances of the offender. He conceded that such a sentence could have been suspended in this case, in the light of the matters relied on by Ms McCrohan. Mr Stirk also submitted that this appeared to be the sentencing norm in other courts throughout Australia which deal with breaches of s239(1)(b) of the Act; however, no statistical material was adduced to support this proposition. 49. For sentencing principles which should be applied, Mr Stirk referred to the frequently-cited case of Laxton v Justice (1985) 38 SASR 376, an appeal by the Director of Public Prosecutions against a sentence on the basis it was manifestly inadequate. The defendant had committed 17 breaches of s138 of the Act, (a provision corresponding to s239, the Act having been amended and renumbered), the making of untrue statements in an application for unemployment benefit. He thereby obtained $1802. He had a bad prior record and had been sentenced to 4 months imprisonment, to be released after 28 days. Olsson J said at p381:- "Unfortunately little material was placed either before the learned Magistrate or this Court as to the degree of continued prevalence of this type of offence or of statistics indicating current sentencing tariff trends. ALL THAT CAN BE SAID WITH CONFIDENCE IS THAT THE OFFENCE HAS BECOME PREVALENT IN RECENT YEARS AND THAT THERE HAS BEEN A DEVELOPING TREND TOWARDS IMPOSING CUSTODIAL SENTENCES, FOR FIRST OFFENCES, IN ABSENCE OF SUBSTANTIAL MITIGATING CIRCUMSTANCES. Even so it is difficult to perceive any particular consistency of tariff. It seems to me that, until some greater degree of stability of sentencing approach evolves, THE PROSECUTION SHOULD SUPPLY SENTENCING MAGISTRATES WITH AS MUCH INFORMATION UPON THE ABOVE TOPICS AS IS REASONABLY FEASIBLE. For present purposes there are three decisions which are of some assistance. They are, sequentially, Taormina v Cameron (1980) 24 SASR 59, Scott v Cameron (1980) 26 SASR 321 and Payne v Bartley (unreported, Prior J., 26 November, 1984.). It is possible to distil the following propositions from those authorities: (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." (emphasis mine) 50. I respectfully agree with these propositions. In the intervening 7 years the offence has become increasingly prevalent. I understand that Magistrates in this jurisdiction are now routinely supplied in prosecutions of this type with tariff schedules such as the one tendered in this case. This has clearly enabled a desirable measure of consistency of sentencing within the Territory. It is important, however, where the offence is under a Commonwealth Act and is very frequently prosecuted all around Australia, that as far may be there is a measure of consistency in sentencing Australia-wide. This throws an additional burden on the prosecution; see the observations of White J in R v Scherf (supra) at 215-6, and R v Watene (1988) 38 A Crim R 353. 51. I note that it may be that sentencing for this offence in the Territory is currently somewhat more lenient than in the rest of Australia; if this be so, it may be corrected if prosecutors draw upon materials which go beyond the Territory limits of the existing tariff schedules. There is a social importance in visiting heavy penalties on those who commit social security frauds; see R v Watene (supra). Increasing prevalence of a particular type of offence is a factor which may point to more severe punishment; cf. Johnstone v Gibson [1987] TASRp 4; (1987) Tas. R. 14. 52. Mr Stirk submitted that in this case, bearing in mind the relatively large amount involved and the extensive period of time over which the offences were committed, the disposition under s20(1)(a) of the Crimes Act was manifestly inadequate, and the need for an element of deterrence required that there be a suspended sentence of imprisonment. The respondent's submissions 53. Mr Allen submitted that it was imprudent of the court not to have allowed defence counsel to address on the presentence report. The relevant part of the transcript, after Ms McCrohan had perused the report, (p13) is as follows:- "MS McCROHAN: Your Worship, I just need to confirm one or two points with Mr Davis about this pre-sentence report. It accords with all of his instructions to me but I'd just like to make him aware of a few matters. HIS WORSHIP: I don't think that's necessary. MS McCROHAN: Yes, Your Worship. Well in my submissions - - - HIS WORSHIP: Anything you want to put?" 54. Ms McCrohan then proceeded to address briefly on the report. Accordingly, there is no substance in the point taken. I agree that Ms McCrohan should have been permitted to consult with her client on the report, for the reasons indicated earlier, but in the circumstances it was immaterial. 55. Mr Allen rightly conceded that, as far as the tariff schedule went, there was no case where the amount involved was more than $10,000, where a defendant had not received a suspended sentence. However, he submitted that his Worship had clearly canvassed the option of imprisonment and had consciously decided that it was not appropriate in the circumstances. It is clearly correct that his Worship did so. Mr Allen submitted that it was within his Worship's sentencing discretion to take that approach, and the disposition under s20(1)(a) of the Crimes Act was not manifestly inadequate. TWO DECISIONS OF THIS COURT 56. At a late stage in the proceedings Mr Stirk located two unreported relevant decisions of this Court. Glenwright v Growden (unreported, 27 September 1990) was a case quite similar to this. It involved a much lower amount, $3269.04. Laxton v Justice (supra) was referred to; so was R v Scherf (supra). As to the sentencing principles applicable to offences of this type, the opinion of Clarke JA in R v Medina (unreported, Court of Criminal Appeal (NSW), 28 May 1990) was approved, viz:- "(The cases) make it clear that in the case of a fraud on the social security system a CUSTODIAL SENTENCE SHOULD BE IMPOSED UNLESS THERE EXIST VERY SPECIAL CIRCUMSTANCES JUSTIFYING SOME LESSER ORDER." (emphasis mine) 57. This approach was also followed in R v Winchester (1992) 58 A Crim R 345. I consider that it is a useful current sentencing guideline. To somewhat similar effect were observations of Olney J in Buchanan v Bain (unreported, Supreme Court of Western Australia, 9 October 1987), and of Neasey J in Fisher v Gibson (unreported, Supreme Court of Tasmania, 18 August 1986). In Culverwell v Jongen (unreported, Supreme Court of Western Australia, 21 May 1982) Burt CJ pointed out that - "- - - compassion and common sense are not to be elbowed out altogether, and one must have regard for the circumstances which are personal to the person to be dealt with." 58. The other case was Morgan v Schrapel (unreported, 4 October 1983) a case where the "greed" principle applied and Muirhead J considered that imprisonment was the only appropriate alternative. CONCLUSIONS 59. I bear in mind that there is a strong presumption that the disposition attacked was correct, and that for the appellant to succeed it must be shown that a conditional release was clearly and obviously inadequate; see R v Anzac [1987] NTCCA 7; (1987) 50 NTR 6. I also bear in mind the cautionary note sounded by King CJ in R v Osenkowski (1982) 30 SASR 211 at 212-3. Appeals by complainants should not be allowed to circumscribe unduly the sentencing discretion of magistrates. I note in passing that in R v Osenkowski (supra) King CJ at p213 considered that the sentence should be increased to "vindicate and uphold the level of penalties which (the Court) has established as appropriate to this type of crime". 60. I consider that the disposition under s20(1)(a) of the Crimes Act, in the circumstances of the offences committed and of the offender, was manifestly inadequate. It fell well below the proper sentencing range, and constituted a gross departure from what experience shows was the sentencing norm. Clearly, his Worship was influenced by the content of the presentence report, which legitimately took no account of the necessity for the disposition to reflect a need for stern general deterrence. I consider that the conditional release does not accord with the general moral sense of the community in that regard, and is unlikely to be a sufficient deterrence to like-minded persons, and militates against consistency in sentencing. 61. Accordingly, I uphold the appeal, quash the order made on 19 January 1993, and set aside the Recognizance entered into by the respondent. It is unnecessary to remit the case for re-sentencing; I proceed to sentence for the 20 offences of which the respondent was convicted, taking into account his other 30 offences. A single sentence may be imposed for all offences; I bear in mind that the aggregate sentence should justly and fairly reflect the total criminality of his conduct - see Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312. 62. I bear in mind the general sentencing principles in ss16A-D of the Crimes Act, and take into account such of the matters listed in s16A(2) as are relevant. I also bear in mind the restriction on imposing a sentence of imprisonment contained in s17A of the Crimes Act. I record that I have considered all other available sentences. 63. A sentence of immediate imprisonment would in my opinion be well warranted. However it is clear that that would not accord with the sentencing approach to offences of this seriousness, hitherto taken in the Territory. That no doubt is why the complainant did not seek a sentence of immediate imprisonment. It is desirable that a warning be given before any substantial departure is made from the current standard of penalties imposed; see Yardley v Betts (1979) 22 SASR 108 at p114, per King CJ. This is to ensure some fairness and equality between persons sentenced for similar types of offences. Any "firming up" of sentencing should be by giving less weight than hitherto to mitigating factors, and greater relative weight to deterrence; see R v Peterson (1983) 11 A Crim R 164. I am also conscious that if, as a result of materials placed before them, Courts of Summary Jurisdiction conclude that penalties currently are too lenient, any correction should be by an upward trend; see Breed v Pryce (1985) 36 NTR 23, and Poyner v The Queen (1986) 66 ALR 264. Whether they are too lenient in comparison with the States, remains to be seen. Further, as this is a sentence imposed following a Crown appeal, the sentence should be less than would have been appropriate at a hearing before the Court of Summary Jurisdiction, for the reasons mentioned by Deane J in Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, at 381 and 386. 64. Bearing these matters in mind, I sentence the respondent to 9 months imprisonment as the aggregate sentence for the 20 offences of which he has been convicted. I direct that that sentence be suspended immediately, upon his entering into a Recognizance in the sum of $1000 to be of good behaviour for a period of 2 years. Pursuant to s239(7) of the Act I order that the respondent repay to the Department the sum of $14,291.53. I will hear counsel as to the details of suitable instalments of these reparations, and I will incorporate a provision for the payment of those instalments as a condition of his bond under s20(1)(a)(ii) of the Crimes Act.
# Slattery
Davis \[1993\] NTSC 13; 111 FLR 250; 65 A Crim R 116
(1981) 58 FLR 414
(1984) 57 ALR 193
(1979) 24 ALR 473
(1913) 16 CLR 336
(1928) 41 CLR 230
(1977) 15 ALR 1
(1971) 125 CLR 447
(1977) 137 CLR 293
(1936) 55 CLR 509
(1936) 55 CLR 499
(1979) 28 ALR 107
(1985) 38 SASR 376
(1980) 24 SASR 59
(1980) 26 SASR 321
(1982) 30 SASR 211
(1986) 83 FLR 312
(1979) 22 SASR 108
(1986) 66 ALR 264
(1989) 167 CLR 372