Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Ground that dismissal of complaint not open on the evidence - Nature of the test. Bedelph v Weedon [1963] Tas SR 69; Richardson v Shipp [1970] Tas SR 105, applied.

Procedure - Courts and judges generally - Precedents - Exercise of federal jurisdiction - Statutory provision construed by the Court of Criminal Appeal of another State. Lowe v Quinton [1973] 1 NSWLR 111; Zibillari v R (1980) 50 FLR 274; Macintosh v Macintosh [1964] VicRp 95; [1964] VR 738, followed.

Social Welfare - Social security payments - Offences - Recklessly making a false statement - Meaning of "reckless". Student and Youth Assistance Act 1973 (Cth), s49(1)(d). Mattingley v Tuckwood (1989) 43 A Crim R 111, followed.

Solicitors for applicant: Australian Government Solicitor

1 That the appeal against the order dismissing count 1 on complaint 38649/95 be dismissed.

2 That the appeal against the order dismissing count 2 on complaint 38649/95 pursuant to the Crimes Act 1914 (Cth), s19B be allowed and that that order be quashed.

3 That the respondent be convicted of the offence charged by count 2 on complaint 38649/95.

1. The respondent was charged on a complaint made by the applicant with breaches of the Student and Youth Assistance Act 1973 (Cth), s49(1)(d) and (e). As amended, the particulars charged in the complaint are as follows: "CHARGE: Recklessly make a statement false in a material particular. BREACH OF: Student and Youth Assistance Act 1973 Section 49(1)(d) PARTICULARS: THAT MARICA DUVNJAK on or about 30 August 1993 at Hobart in Tasmania did recklessly make a statement in a document entitled 'Austudy Eligibility Check' dated 30 August 1993 which was false in a material particular in that she falsely stated that her taxable income from employment with Mures for the period 1 January 1993 to 31 December 1993 would be $5,000.00.

CHARGE: Contravene Section 48 Student and Youth Assistance Act 2. without reasonable excuse. BREACH OF: Student and Youth Assistance Act 1973 Section 49(1)(e) PARTICULARS: THAT MARICA DUVNJAK on or about 8 May 1993 and continuing did, without reasonable excuse, contravene Section 48 of the Student Assistance Act 1973 in that she did fail to notify the Department of Employment Education and Training in writing within 7 days of the receipt of her of more income than the latest estimate given to the Department by her in accordance with the requirements of regulation 110 of the Austudy Assistance Regulations.

PARTICULARS OF ESTIMATE AND INCOME

3. On or about 30 April 1993 Marica Duvnjak did make a statement in a document entitled 'Austudy Eligibility Check' dated 30 April 4. that her income from employment with Mures for the period 1 January 1993 to 31 December 1993 would be $5,000.00. 5. As at 25 April 1993 Marica Duvnjak had earned $5,045.55 from her employment with Mures for the period 1 January 1993 to 18 April 1993."

6. The particulars are rather inelegantly drawn. However it is accepted that the final portion, appearing under the heading "PARTICULARS OF ESTIMATE AND INCOME", refers to the estimate mentioned in the particulars of count 2 and to the income allegedly earned by the respondent as at 18 April 1993 which allegedly gave rise to the obligation to notify referred to in those particulars.

7. The respondent pleaded not guilty to each of the charges. The learned magistrate was not satisfied beyond reasonable doubt of the guilt of the respondent of the first of the charges and dismissed it. He found the second charge proved. In purported exercise of the powers conferred by the Crimes Act 1914 (Cth), s16BA, the learned magistrate took into account a further breach of the Act, s48, committed by the respondent in 1994, when sentencing her on the second charge. He then dismissed it pursuant to the provisions of the Crimes Act, s19B.

8. The applicant has filed the notice to review all the orders made by the learned magistrate. As amended, the grounds set forth in the notice to review which were argued are as follows: "1 That the learned Magistrate erred in fact and in law in dismissing count one of the complaint in that the dismissal was against the evidence and the weight of the evidence and the test applied was wrong in law in relation to recklessness;

2 That the learned Magistrate erred in fact and/or in law in taking into account matters pursuant to Section 16BA of the Crimes Act 1914 when exercising his discretion to dismiss count two on the complaint pursuant to Section 19B of the Crimes Act 1914; ....

4 The learned Magistrate erred in law in imposing a sentence which was manifestly inadequate in all the circumstances."

Ground 1 9. The learned magistrate expressed his reasons for dismissing count 1 in the following terms: "On Count 1, the defendant is charged that in a document P4, dated 30th August, 1993 she recklessly made a statement which was false, namely that income for the period 1 January '93 to 31 December '93 would be five thousand dollars. The defendant did state in that document that such sum would be her income in that period. By the 30th June that year she had received $7,683.00 so there is no doubt that the statement was not accurate. P4 is entitled 'Austudy Eligibility Form Check List.'

In P2, the defendant's application for Austudy for the year 1993, she wrote in the same sum of five thousand dollars, and answered question 36 estimating the amount of income in that calendar year. The figure on each occasion was estimated. 'An approximate idea; to calculate roughly; to form an opinion about;' - to use an extract from Collins Dictionary. There is a difference between the estimate made on 16th February and the receipt by 30th June of in excess of fifty three percent. The prosecution submitted that by the 30th August 1993 the defendant 'must have known the amount received and was certainly reckless because she made no enquiries, and indeed, didn't look at the documents available to her, and just willy-nilly filled out that form recklessly.' I do not accept or agree with that proposition.

1993 was Miss Duvnjak's final university year and her degree course. I accept that she had a full academic load, particularly with regard to her subject neuro-anatomy and did not wish or intend to work longer or more than was necessary to provide minimally sufficient to maintain her, and to provide her with some social life outside work and study. I accept that records of the defendant's pay in the form of pay slips were to always to hand and that those that were did not contain a record of accumulated receipts.

This is not a case where on [sic] can infer that the defendant seized upon the maximum allowable sum to be received, whilst remaining eligible for Austudy and thereafter chose to earn as much as possible and repay it at her convenience. Even though one may be considerably suspicious about whether bank records and statements did not provide from time to time information about receipts in relevant periods, but that is not proof.

It's a very wrong use of the work 'reckless' in criminal and quasi-criminal law to use it as a synonym for gross carelessness. '"Reckless"' is only involved on a true use of that terminology where you actually advert to a risk and make a conscious choice to ignore it,' to use the language of Nettlefold, J in Mansell v Crawford 21/11/1988, which I adopt and apply here.

Count 1 of the complaint is not proved and will be dismissed."

10. The offence charged was a breach of the Act, s49(1)(d), which provides as follows: "49 (1) A person shall not: ... (d) knowingly or recklessly make or present to an officer or employee of the Department a statement or document that is false or misleading in a material particular; or ...".

11. There was unchallenged evidence before the learned magistrate that the respondent had made to an officer or employee of the Department of Employment Education and Training ("the department") a statement in a document which was false in a material particular. The false statement was made by her in response to a question contained in a departmental eligibility check form concerning her taxable income from 1 January to 31 December 1993. The respondent answered the question on or about 30 August 1993 by stating that she would receive such income from employment in the sum of $5,000. When she made that statement, the respondent had already received, since 1 January 1993, income from her employment in the sum of $7,757.80. There was some evidence suggesting that the respondent was expecting that she would be entitled to some deductions from that income for the purposes of determining her taxable income.

12. The learned magistrate's reference to the receipt of income of $7,683 was erroneous. There was evidence that the income received by the respondent during the financial year ended 30 June 1993, as disclosed by a group tax certificate, was in that amount. That was not immediately or directly relevant, because it included income received by her on or before 31 December 1992 which was not the subject of the question answered by the respondent.

13. The only contentious issue which the learned magistrate was required to determine was whether the applicant had proved beyond reasonable doubt that the respondent had made the false statement "recklessly". The learned magistrate stated what he considered to be the relevant test. Ground 1 asserts that the test applied is not the appropriate test when determining whether a statement has been made recklessly for the purposes of s49(1)(d). The learned magistrate said that that test was one which had been applied by Nettlefold J in an earlier case. It has not been possible to locate the relevant judgment. The records of the Court indicate that Nettlefold J did deal with a lower court appeal entitled Mansell v Crawford on 22 November 1988 giving brief ex tempore reasons, but that the subject matter of that appeal does not appear to have been anything of relevance to the present case. The question remains whether the test applied by the learned magistrate was the correct test.

14. The effect of the test applied by the learned magistrate was that before it can be said that a false statement has been made recklessly, it is necessary that the maker of the statement actually adverts to the risk that the statement is false and then makes a conscious choice to ignore that risk. Although counsel for the applicant submitted that that test is wrong in law, I have had some difficulty in distilling from his submissions the test for which he contended. Counsel referred to a series of authorities concerned with the meaning of the word "reckless" and its derivatives, appearing in a variety of contexts, without contending for any particular test and recognising that the meaning of the word may be coloured by the context in which it appears (R v Phillips (1971) 45 ALJR 467 at 478; Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 669).

15. The authorities suggest that there the word "reckless" has been used in the criminal law in the following senses: 1 as conveying the concept of doing an act whilst contemplating the probability of it having the relevant consequence or quality with indifference to that consequence or quality (R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, explaining Pemble v R [1971] HCA 20; (1971) 124 CLR 107 at 119; Jackson v Butterworth [1946] VicLawRp 51; [1946] VLR 330; Mattingley v Tuckwood (1989) 43 A Crim R 111 at 121; R v Nuri [1990] VicRp 55; [1990] VR 641; Filmer v Barclay [1994] 2 VR 26);

2 as conveying the concept of doing an act whilst contemplating the possibility of it having the relevant consequence or quality with indifference to that consequence or quality (R v Coleman (1990) 19 NSWLR 467; Jackson v Butterworth (supra));

3 as conveying the concept of doing an act whilst knowing or recognising the existence of a substantial risk of it having the relevant consequence or quality but nevertheless doing that act (R v Smith (1982) 7 A Crim R 437);

4 as conveying the concept of doing an act which has the relevant consequence or quality without caring whether it will have that consequence or has that quality (Williams Brothers Direct Supply Stores Ltd v Cloote (1944) 60 TLR 270; R v McKinnon [1959] 1 QB 150 at 153);

5 as conveying the concept of doing an act which creates an obvious risk that it will have the relevant consequence or quality but nevertheless doing that act without having given any thought to the possibility to the risk of it having that consequence or quality or with a recognition of the risk (Commissioner of Police of the Metropolis v Caldwell [1982] UKHL 1; [1982] AC 341).

16. It is clear that, in the context of the criminal law, the word "reckless" means more than mere carelessness or negligence in the sense in which it is used in the civil law (Pollard v Commonwealth Director of Public Prosecutions (supra) at 670 - 671). The Australian authorities take approaches which have an underlying common feature, namely that recklessness is doing an act whilst contemplating the chance of it having the relevant consequence or quality with indifference to that consequence or quality. The differences in judicial approach have been as to the nature of the chance, it having been described as a probability, a substantial risk and a possibility. To refer to something being a probability is no more than a different way of saying that there is a substantial risk of it occurring (see Boughey v R [1986] HCA 29; (1986) 161 CLR 10 at 22; Simpson v R A77/1996). Authority suggests that for the purposes of s48(1)(d) "reckless" should be construed in the sense referred to in Mattingley v Tuckwood (supra) at 121, namely as "indifference as to whether a representation is true or false knowing that, more probably than not, it is false" and "recklessly" given the corresponding meaning.

17. When the learned magistrate said that the word "reckless" requires an actual advertence to a risk and the making of a conscious choice to ignore it, he applied a more stringent test. The test which he applied requires no more than a state of knowledge which admits to the possibility that the statement is false. In that sense the learned magistrate did not apply the correct test. However, as the appropriate test is more stringent than that which he applied, the error provides no occasion for setting aside the dismissal of the charge. The conclusion that the charge had not been made out on an application of that test necessarily requires the conclusion that it has not been made out on an application of the correct test. Ground 1 fails insofar as it asserts that the learned magistrate applied a wrong legal test.

18. The other assertion made by ground 1 is that the dismissal was "against the evidence and the weight of the evidence". The sufficiency of ground for review so expressed is not free from doubt (see Teders v Miller [1964] Tas SR 176, per Crawford J at 183). However, no point was taken as to that. The conclusions which I have reached make it unnecessary to pursue the matter. Nevertheless, whether or not such a ground is sufficient to allege error, its use ought not to be encouraged. Counsel for the applicant submitted that this part of ground 1 asserts that no reasonable magistrate could have entertained a reasonable doubt of the guilt of the respondent on the evidence which was before the learned magistrate. I will consider it on this basis.

19. Counsel for the applicant referred to various pieces of evidence which he said were not taken into account by the learned magistrate. Even if the reasons expressed by the learned magistrate support the argument that he failed to have regard to relevant evidence, any error on the part of the learned magistrate constituted by such omission is not the subject of any ground of appeal. The applicant submitted that the defence appeared to have been one of mere inadvertence and not recklessness and that such a defence could not be supported by inferences to be drawn from the evidence. That submission proceeds upon a misunderstanding of the nature of the burden of proof which the applicant was required to discharge in order to establish the commission of the offence charged. There was no onus on the respondent to prove that the false statement had been made through inadvertence. The onus was on the applicant to prove that the false statement had been made recklessly.

20. As part of discharging that onus the applicant was required to prove that the respondent had made the false statement knowing that, more probably than not, the statement was false. The effect of the learned magistrate's conclusions is that he was not satisfied that the respondent had adverted to the risk that the statement might be false. A fortiori he was not satisfied that she had the knowledge required to be proved before it could be said that she had made the false statement recklessly. I might not have reached the same conclusion as those reached by the learned magistrate, but that is not the question which I am required to consider. It was open to the learned magistrate to reach that conclusion. He had the sworn evidence of the respondent, which he accepted, which justified that conclusion. The fact that there was other evidence which would have entitled the learned magistrate to reject this evidence of the respondent is not to the point.

21. It has long been accepted as settled law that the function of the Court when reviewing the decision of a magistrate on an issue of fact is similar to that performed by the Court of Criminal Appeal when it hears an appeal from a verdict of a jury (Bedelph v Weedon [1963] Tas SR 69; Richardson v Shipp [1970] Tas SR 105). Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446 has not affected that principle. It does no more than reflect the basis upon which the verdict of a jury may be reviewed as referred to by the High Court in M v R [1994] HCA 63; (1994) 181 CLR 487. The learned magistrate concluded that he was not satisfied beyond reasonable doubt that the respondent had made the false statement recklessly. The evidence admitted to that conclusion. It follows that it cannot be said that no reasonable magistrate could have come to that conclusion. Ground 1 is not made out.

Ground 2 22. After the learned magistrate had found the second charge proved, counsel who then appeared for the applicant told the magistrate that it was "the application of the parties that a further matter be taken into account in accordance with the provisions of s16B [sic] of the Crimes Act". The power of a court to take other offences into account when sentencing an offender is conferred by the Crimes Act, s16BA, and is only exercisable "where a person is convicted of a federal offence or federal offences". Where that occurs and subject to the satisfaction of a number of prerequisites (all of which existed in the present case in relation to the offence taken into account by the learned magistrate) and exceptions (none of which were relevant in the present case), a court, by s16AB(2), "may, if it thinks fit, in passing sentence on [the offender] for the offence or offences of which he has been convicted, take into account all or any of the offences in respect of which the person has admitted his guilt".

23. The applicant submits that the respondent was not ever convicted of any federal offence so that the learned magistrate had no jurisdiction to take any other offence into account. Counsel submitted that the finding of the learned magistrate that count 2 was proved does not constitute a conviction for the purposes of s16AB. For that submission he relied on the decision of the New South Wales Court of Criminal Appeal in R v Boulos (1988) 37 A Crim R 461. Counsel for the respondent submitted that I should not follow that case.

24. In R v Boulos the court gave specific consideration to s16AB (then numbered as s21AA). The respondent in that case had pleaded guilty before the District Court to a number of breaches of a Commonwealth law. The sentencing judge had discharged the respondent without proceeding to conviction, stating that he had taken other offences into account. Dealing with this, Street CJ, with whom the other members of the court agreed, said at 464: "The other aspect concerns his Honour having expressly stated that he took into account the offences set out in the schedule. [Counsel for the appellant] points out s 21AA is only available to permit schedule offences to be taken into account where 'A person is convicted of an offence or offences against the law of the Commonwealth'. In the present case his Honour proceeded pursuant to s 19B to discharge the respondent without proceeding to conviction. It is apparent that if his Honour had convicted and dealt with the case under s 20 of the Crimes Act, then the scheduling provisions of s 20AA would have been available. It does not seem to me, however, that a discharge under s 19B attracts the operation of s 21AA.

[Counsel for the respondent] has argued that a discharge under s 19B could for the purposes of the later section be regarded as a conviction, but I hesitate long before trifling with the meaning to be given to a word carrying all the overtones of the word 'conviction'. It was his Honour's express intention, bearing in mind the psychiatric evidence, that this respondent should be free to go from court without having been convicted. Notwithstanding that this may deny her technically the benefit of the schedule offences being taken into account, I would not regard an order under s 19B as permitting s 21AA to be called into operation."

25. With respect, I am of the opinion that that passage does not proceed upon a correct basis as to the stage at which there must be a conviction before the power to take other offences into account arises. The proposition that an order under s19B does not permit s16AB to be called into operation overlooks the requirement that there must be a conviction before the relevant sentencing order is made. It is only after there has been a conviction that the statutory steps which lead to the power to take other offences into account arises. The sentencing order which is made takes those matters into account. The question of whether there has been a conviction is to be determined not by reference to the nature of the ultimate sentencing order but by reference to the status of the offender before such an order has been made. Despite that, R v Boulos is to be treated as authority for the proposition that the respondent in the present case was not convicted on count 2 at any relevant time.

26. Unless there is High Court authority or authority of a court of equal status to the contrary, a single judge of this Court should follow a decision of the Full Court of a State or Territory or of the Full Court of a superior federal court unless convinced that such a decision is plainly wrong (Della Patrona v Director of Public Prosecutions (Cth) (1995) 38 NSWLR 257 at 265 - 266; Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51 at 66; Payne v Crawford (1992) 3 Tas R 360 at 364 - 365). The requirement for such an approach is even more compelling in the case of uniform legislation (Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492) and Commonwealth legislation being construed by a State court (Lowe v Quinton [1973] 1 NSWLR 111; Zibillari v R (1980) 50 FLR 274; Macintosh v Macintosh [1964] VicRp 95; [1964] VR 738).

27. Counsel for the respondent referred me to a number of authorities dealing with the meaning of the word "conviction". The cases referred to, Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, Cobiac v Liddey [1969] HCA 26; (1969) 119 CLR 257, Maxwell v R [1996] HCA 46; (1996) 135 ALR 1 and R v Tonks [1963] VicRp 19; [1963] VR 121, illustrate the difficulties in finding a meaning for the word. However none of those cases are authority for the proposition that at common law a person is convicted of a summary offence upon there being an admission or finding of guilt. Whilst Maxwell v R may be said to indicate a different understanding as to when a person may be said to be convicted on indictment, that is of little assistance in the present case, which is concerned with summary proceedings. It must be borne in mind that I am concerned with the construction of a provision of an Act which may or may not use the word in its common law sense. In some circumstances a statutory reference to "conviction" ought to be construed as the act of a court of competent jurisdiction adjudging a person to be guilty of an offence (R v London County Quarter Sessions Appeals Committee; ex parte Metropolitan Police Commissioner [1948] 1 KB 670 at 679). The argument presented by the respondent is attractive and, were it not for the decision in R v Boulos (supra), might be one which I would have accepted. However, I am not convinced that that decision is plainly wrong. In those circumstances it is appropriate that I follow it. Accordingly I hold that the learned magistrate erred in law in taking the other offence into account. Ground 2 is made out.

Ground 4 28. It was not suggested that the sentencing order made by the learned magistrate could be impugned by reason of his erroneous taking into account of a further offence. By taking that step he took into account more extensive wrong-doing than that which he was entitled to take into account. Counsel accepted that this ground should be considered on the basis of whether the sentencing order made was a manifestly inadequate response to the conduct encompassed by count 2.

29. It is necessary to identify that conduct. It charged a breach of the Act, s48 which provides as follows: "48 If a prescribed event happens in relation to a person who is receiving, or entitled to receive, an amount under this Act other than Part 8 (including an amount under a financial supplement contract) or a current special educational assistance scheme, the person must notify the Department, in accordance with the regulations, of the happening of the event within 7 days."

30. The relevant prescribed event was provided for by the Austudy Assistance Regulations, reg109(1)(a)(xvi), as follows: "109 (1) For the purposes of section 48 of the Student and Youth Assistance Act 1973, the following are prescribed events about which the student must tell the Department: (a) if the student: ... (xvi) gets more income than the latest estimate given to the Department; or ...".

31. Although the complaint uses the words "and continuing", counsel who argued the appeal for the applicant accepted that a continuing offence was not charged and that the offence was complete on the expiration of the period prescribed by s48 without the respondent having notified the Department of the relevant receipt of income. He said that it was the first receipt of income by the respondent which exceeded the estimated amount which attracted the obligation intended to be the subject of the complaint. Those concessions made by the applicant obviated any consideration of the issues dealt with in Walsh v Tattersall (1996) 70 ALJR 884.

32. When the matter was called for judgment other counsel appeared for the applicant. She sought, and was granted, leave to make further submissions on this point. She resiled from the concessions made earlier. She relied upon the Crimes Act, s4K for the proposition that the offence charged was a continuing offence, encompassing not only the failure to notify the first receipt of income by the respondent which had the result that the total amount received by her up until that time exceeded the amount of her estimate, but also the failure to notify further receipts of income. Whilst I accept that s4K(1) and (2) have relevant operation to make the failure to notify a continuing offence in relation to the initial obligation and in relation to the income which was the subject of that obligation, I do not accept that the failure to notify the receipt of further income is an ingredient of that continuing offence. Each subsequent receipt constituted a prescribed event and the failure to notify it a separate breach of s48. On the basis of Walsh v Tattersall (supra) each breach should be the subject of a separate charge. In any event, the charge, as particularised, only concerns the first amount of income received by the respondent which was in excess of the estimate.

33. It is accepted that on 30 April 1993, the respondent, in a document provided to the department, stated that she expected to receive income of $5,300 from employment during the calendar year 1993, that she expected to have allowable taxation deductions of $300, leaving a net taxable income of $5,000. Although the particulars contained in the complaint do not quite suggest this, the applicant accepts that the initial relevant obligation was one which arose upon the applicant first receiving income from her employment which had the effect of total receipts from that employment during the calendar year 1993 exceeding $5,300. It is common ground between the parties that the evidence discloses that that occurred on 2 May 1993 when the respondent received a payment from her employer in the sum of $117.03. The particulars are inaccurate as to the precise dates and amounts, but they do not suggest reliance on any failure beyond the failure to notify the first amount received which brought the respondent's total earnings for the year over her estimate. That receipt had the result that the respondent's gross receipts of income for the calendar year 1993 then totalled $5,376.40. The respondent committed the relevant offence when she failed to notify that receipt within seven days. It is that offence for which she was to be sentenced. Even if my conclusions as to the effect of the Crimes Act, s4K are erroneous, the way in which the charge has been formulated results in subsequent receipts of income not being relevant.

34. The following provisions of s19B are relevant to the power exercised by the learned magistrate: "19B (1) Where: (a) a person is charged before a court with an offence against the law of the Commonwealth; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, cultural background, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment ... the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied;".

35. The learned magistrate made the following observations: "Yes. Miss Duvnjak, I am a strong view [sic] that I ought to deal with count 2 on complaint 38649/95 and with the new matter brought in today, under S 19 B of the Crimes Act. As I said on 20th August, in relation to count 2 on the complaint, no dishonesty was involved in your lack of attentiveness - to use the words I used on that day - in relation to your failure to advise, and that being so, it is not, I am quite satisfied, a case of intended wrongful receipt, or as I ruled in relation to count 1, of recklessness either. And that means that the moral obliquity, culpability or fault is very slight.

In relation to the matter which I've taken into account under S 16 B A today, I am not at all surprised that you were unaware of the concentration of dates and figures and entitlements which have produced the statement in the terms in which it was made today by Mrs Read, as appeared to you, I hope, during her discussion with me as to that. It is complicated and requiring to be a very strictly precise matter, indeed. I would be very surprised if you are the only person in local similar circumstances who has overlooked such matters.

The other relevant matter is that when the facts were brought to your attention you followed them with the result that you've repaid the complete amounts wrongly received.

I do give some weight to the option which Mr Williams put to me, may have been open to you and I put it no higher than that - may have been open to you - if you had been aware that your entitlement was in excess - that your receipt was in excess of your entitlement, and therefore made other arrangements about paid employment, and had you done so, you would have ended up in a much better position than you were at the time not having done so, and than the position in which you are now. I do not give much weight to the submission made about consequences of the conviction, because if I thought it a proper case for a conviction and penalty the consequences would have to be borne as a matter of course.

But I accept that count 2 on the complaint and the new matter are very greatly extenuated by all the matters that I have mentioned in giving these reasons and generally speaking by the matters which Mr Williams put to me.

On count 2 of the complaint that will be disposed of by a dismissal under S 19 B of the Crimes Act and I certify that I have taken into account the fresh matter in making that order."

36. It appears from those observations that the learned magistrate was persuaded that he should dismiss the charge under s19B(1)(c) by reason of the previous good character of the respondent, the absence of dishonesty, the extenuating circumstances under which the offence had been committed and the repayment of the Austudy overpaid by reason of earnings not disclosed by the respondent. Counsel for the applicant, relying on the dictum of Jacobs J in Kelton v Uren (1981) 27 SASR 92 at 93, submitted that before s19B may properly be invoked there must be something that clearly distinguishes the circumstances of the offence from the typical offence, or circumstances of an unusual nature personal to the defendant. That puts the position a little too highly because any one of the factors mentioned in s19B(1)(b) may be sufficient to justify the existence of the power (O'Brien v Norton- Smith [1995] TASSC 78; (1995) 83 A Crim R 41 at 44 - 45). The test is that expressed by Cox J in Lanham v Brake (1983) 74 FLR 284 at 288: "Before a court may exercise the powers conferred by s. 19B it must be satisfied that the charge is proved, find that one or more of the par.(b) matters has a relevant operation, and then decide that such matter or matters can reasonably support the exercise of the statutory discretion."

37. One matter which needs to be considered is whether the learned magistrate was required to take into account that the offence committed by the respondent was part of a course of conduct, in that subsequent to its commission she continued to receive income from her employment for the remainder of the calendar year without informing the department. I do not consider that such subsequent omissions on the respondent's part can be taken as aggravating her conduct. Although continuing, the offence was complete upon the expiration of the period of seven days from when she received the relevant income. Nevertheless, had the respondent received no further income during the year or had she disclosed the fact that she had received income in excess of the estimate soon after the expiration of the notification period, those circumstances would have gone in mitigation. The matters referred to by the applicant are only relevant to the extent that they demonstrate an absence of particular mitigatory matters.

38. I have concluded that the sentencing order made by the learned magistrate was so inadequate as a response to the respondent's offence that it can be described as being manifestly inadequate. There was nothing atypical about the offence or the circumstances in which it was committed. Giving due weight to the respondent's good character, there were insufficient grounds to proceed under s19B. The offence cannot be described as a trivial nature. The need to protect the revenue was a relevant factor (see Aikman v Bourne (1992) 63 A Crim R 467 at 471). Ground 4 is made out and the order of the learned magistrate set aside.

39. It follows that the respondent should be convicted on the second charge. Counsel were agreed that if I reached that conclusion I should sentence the respondent. Before doing so I will hear counsel further and in particular give the respondent an opportunity of requesting me to take the other offence into account pursuant to s16AB.

40. I order as follows: 1 That the appeal against the order dismissing count 1 on complaint 38649/95 be dismissed.

2 That the appeal against the order dismissing count 2 on complaint 38649/95 pursuant to the Crimes Act 1914 (Cth), s19B be allowed and that that order be quashed.

3 That the respondent be convicted of the offence charged by count 2 on complaint 38649/95.