kea90121
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 428 of 1990

IN THE MATTER OF the Justices Act

AND IN THE MATTER of an appeal from orders by the Court of Summary Jurisdiction at Darwin

BETWEEN:

HAROLD GLENWRIGHT
Appellant

AND:
DEAN GROWDEN
Respondent

CORAM:	KEARNEY J.

REASONS FOR DECISION

(Delivered 27 September 1990)

These are appeals by a complainant under s.163 of the Justices Act against the inadequacy of punishment imposeq by the Court of Summary Jurisdiction at Darwin in respect o offences under s.239(1)(a)(i) of the Social Security Act 1947 (C'th), commonly known as 'dole cheating'.	The circumstances of the case were as follows.

The offences

The respondent claimed unemployment benefits for himself, his wife and 2 dependants on 12 February 1988 and was paid those benefits from that day.	On 26 June 1990 he pleaded guilty before the Court of Summary Jurisdiction at Darwin to the following 7 charges under s.239(1)(a)(i):-

Four charges of knowingly making a false statement when claiming the continuation of (4) fortnightly unemployment benefits of $262.50 per week for himself.	That is, he falsely stated on 24 March, 7 April, 27 April and
23 May 1988 that his spouse had not done work for which she had been paid.

Three further charges of knowingly making a false statement when claiming continuation of
(3) fortnightly unemployment benefits for himself.	These benefits amounted to $262.50 per week until 2 June 1988 and $269.10 per week thereafter.	He falsely stated on 23 May,
7 June and 1 July 1988 that he and his wife had not done work for which they had been paid.

He admitted the following facts:-

On 14 March 1988, his wife commenced full-time work at Litchfield Station.	The respondent also commenced full-time work at that station on 17 May 1988.	Both of them ceased employment on 14 July 1988.	Between 24 March and 1 July, a period of some 14 weeks, he signed and lodged seven fortnightly applications for continuation of unemployment benefit, which did not disclose the employment or income of either himself or his wife.

During the 9 weeks that the respondent was employed, 17 May - 14 July 1988, he earned
$3,096.60, an average wage of approximately $367.26 per week.	His wife earned $4,875.71 over about
17.5 weeks, at an average wage of approximately
$279.75 per week.
The respondent made a statement to a Social Security officer, Ms Narelle Hee, on 9 January 1990 in which he stated:	"I knew I was supposed to tell Social Security about my wife's employment.

However, we were having financial difficulties at the time.	I had car repayments of $500 per month; I had bought a motorbike for my son in March 1987 and I was still $110 - $115 per month and I had two stallions which were costing me around $300 per month to care for".

As a result of the offences, the respondent was overpaid $3,269.04 in unemployment benefits of which $1,388.64 remains outstanding.	The last repayment received by the Department of Social Security to recover that amount was on 26 April 1990, and that was from withholding money from his unemployment benefit.	The last payment made voluntarily by the respondent was in July 1989.

The proceedings in the Court

The learned Magistrate was referred to 2 authorities dealing with sentencing principles in social security frauds such as this.

.The first was Laxton v Justice (1985) 38 SASR 376, a case where there was a deliberate fraud over 7½ months involving the use of a completely false identity; the sum  was $1802.	The Magistrate had imposed an effective sentence of 4 months imprisonment but directed the release of the respondent on a good behaviour bond after serving 28 days.
The Director of Public Prosecutions appealed on the basis that this sentence was manifestly inadequate.	Olsson J noted that "the sentence imposed was relatively modest", and that the respondent whose "personal history is a sorry story" had "a most unenviable record of convictions for·a variety of offences".	Applying House v The King (1936)'55 CLR 499, his Honour noted the need for error to be established before the appellate court could interfere with the sentence.	He also noted the considerations peculiar to Crown appeals when the manifest inadequacy of a sentence was attacked, citing R v Osenkowski (1982) 30 SASR 212 at p.213, per King CJ:-

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

His Honour noted "a developing trend [in these offences] towards imposing custodial sentences for first offences in the absence of substantial mitigating circumstances".	He said at p.381:-

"For present purposes there are three decisions which are of some assistance.	They are, sequentially, Taormina v Cameron [(1980) 24
S.A.S.R. 59], Scott v Cameron [(1980) 26 S.A.S.R. 321] and Payne v Bartley [unreported,	Prior J., 26th November, 1984].	It is possible to distill the following propositions from those authorities:
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.

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.

It is relevant to regard a continuing series of frauds of this type as increasing the moral blameworthiness of the offender's deceit, by way of contrast with single or short term offences.

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)

I accept these propositions as now well-established in the law.	I also respectfully agree with the views of King CJ in R v Osenkowski (supra), as to the proper role of prosecution appeals.

His Honour considered the facts of the three cases and observed at p.382:

"Against that background a custodial sentence in the instant case was virtually inevitable."

His Honour however dismissed the appeal, being of the view that the sentence of 4 months imprisonment was at the "low end of the spectrum" but not so inadequate as to shock the public conscience, while the suspension of part of the sentence involved the "maximum possible leniency."

The second authority to which his Worship was referred was Vasin and Scherf (1985) 18 A Crim R 209, where a "need
-v- greed" principle was enunciated.	The head note is as follows:-

"V pleaded guilty to fifteen counts of obtaining unemployment benefits which were not payable.
Twenty-three other offences were taken into account.	The offences constituted a course of conduct between November 1982 and June 1984.	V  lived with and looked after his grandmother, who, for fear of being put in a home, refused to apply for a special benefit to which she would have been entitled.		V was unemployed, but did valuable and skilled - unpaid - community work.	V drew more than one unemployment benefit by using a false, name.	He thus obtained more than $5,600.	When found out, he made no admissions and tried to bluff it out by lies and deceit.	He was sentenced to twelve months imprisonment with a non-parole period of seven months.
S pleaded guilty to ten counts of presenting a false document.	Seventeen similar offences were taken into account.	The offences constituted a course of conduct between February 1982 and March

1984.	He had obtained $9,000.	The essence of his fraud was that when he applied for unemployment benefits, he did not disclose that his wife was working.		He admitted the offences when interviewed.	He was sentenced to two years imprisonment with a non-parole period of eighteen months.		He had previous convictions for dishonesty and being unlawfully on premises, the last being in 1970.

Held: (a) With respect to V (per White and Millhouse JJ, King CJ dissenting):	The sentence imposed on V was manifestly excessive, and V, having already served three and a half months, should be released immediately upon entering a bond for $1,000 to be of good behaviour for three years and that he pay the sum of $1,450 restitution at
$20 fortnightly.

While V's offending deserved a term of imprisonment by reason of the degree of sophistication and duration of the scheme and the size of the sum obtained, on the other side was his excellent general character, community service for the disadvantaged, caring for his aged grandmother and his plea of guilty.	Moreover, he offended from need, not greed, and most of his offending took place before the penalties for the offence were substantially increased.	Lastly, in this special case, hardship to his grandmother should have been taken into account.	In these circumstances, a term of six months would have been appropriate.
(b)	With respect to s (per coram):	The appeal should be dismissed.		S offended by reason of greed.	He needed money to pay for extravagant drinking, women, and five cars.	His prior record was not blameless.	In these circumstances, a prison term was needed as a deterrent both to him and to others.	While he had successfully given up drink and re-established his marriage, there was insufficient material to conclude that the sentencing judge was manifestly wrong." (emphasis mine)

White J at p.215 stressed the desirability of a uniformity  of approach throughout Australia to sentencing for this type of offence.	I respectfully agree.

Counsel for the complainant submitted to his Worship that during some 9 weeks of the time during which the offences were being committed, the respondent's wages, his wife's wages and his unemployment benefits meant that the household receipts were in excess of $900 per week, which pointed to his offences being on a "greed" basis, in terms of Vasin (supra).

The learned Magistrate was informed of the following matters.		The respondent was about 43 years of age at the time.	He had been in a de facto relationship for some 13 years.		His two children were aged 14 and 10.	At the time of these offences he had been unemployed since July 1987.
He had worked as a stockrnan on cattle stations in the Top End for 25 years, mustering and fencing.	As a stockrnan he had about a dozen horses.		He had attempted to set up a business venture at Litchfield Park, near which he lives, involving taking people by horse on trail rides through the Park.	He had obtained the necessary permission, but still needed to build stables.		He was reluctant to dispose of the two stallions, which were the last of their kind and from which he hoped to breed.	His hire purchase commitments had been undertaken when he was in paid employment.	For a substantial period between July 1987 and February 1988 he  had not applied for any State benefits at all; prior to this time he had never in his working life applied for unemployment benefits.	He was then living off the savings which he and his wife had accrued.	He is involved with.the Woolaning Aboriginal Community and he had put in a lot 9f voluntary work seeking to have a school built in that area.

He is an ex-serviceman and has worked since he was 12 years of age.	He had made restitution at the rate of $500 per month while he was working; when unemployed, amounts were deducted from his unemployment benefits.	As at the time he appeared before his Worship on 26 June 1990, he owed the Department $1388.64.

The decision of the Court

His Worship dealt with the respondent immediately, as follows:-

"I think you're entitled to ask the court for some leniency because of your prior good history.	I suppose my observations in court account for something.	The fact that you've been a longstanding member of the Northern Territory community and you've worked on the land for 25 years, I think, is a testimony to your contribution to the community in the Northern Territory.

Whilst the amount that you've got over a 3 month period is reasonably high, you did have a family and two children to support and I'll give you the benefit of the fact that you hadn't claimed unemployment benefits for some time and, according to your solicitor, not ever before.

I think that people such as myself and the prosecutor and the defendant receive - are in well-paid employment and probably don't have to undergo some of the privations of work conditions that you and people such as stockmen and farm workers have to.

I'm going to convict you of each of these offences. It seems to me that it's not really a question of greed.	It probably is a question of inappropriate organisation of your finances.	And if it's not that, it's probably need.	I understand that people who are stockmen do have to have some plant and to keep twelve horses, in my experience, is really not unusual for someone who's involved in the stock industry.

So I convict; pursuant to section 20 of the Crimes Act, I release you without sentence on a $500
own-recognizance bond to be of good behaviour for
12 months.	I make a condition of that bond that you make restitution of $1388.64.	That is, you've got 12 months to make that restitution."

Section 20 of the Crimes Act (C'th) provides, as far as material:-

"20. (1)	Where a person is convicted of a federal offence - - - the court before which he is convicted may, if it thinks fit -

by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions :- - - "

The appeal

The appellant relies on the following 7 grounds in relation to each appeal:-

That the sentence was manifestly inadequate.

The Court failed to have proper regard to the prevalence of such offences, and the requirement for deterrence, both general and specific, in order to protect the social security system.

The order of the Court was an inadequate penalty when compared with prevailing penalties for such offences.

The learned Magistrate erred in law in that in reaching his decision he took into account an irrelevant consideration, namely, that the prosecutor and defence counsel and the learned Magistrate himself are in well-paid employment and further and in the alternative the learned Magistrate erred in finding that "probably [the prosecutor defence counsel and himself] don't have to undergo some of the privations of work conditions that [the respondent] and people such as stockmen and farm workers have to" and in relying on such considerations.
By reason of the amount defrauded; the length of time over which the offences continued; the amount of additional income received by the defendant during the period of the offences; and the use to which the additional income was put; the offences were too serious to be disposed of by way of an order releasing the defendant without passing sentence.

The Court did not have proper regard to the sentencing options available for such offences.
The learned Magistrate erred in finding that:

"It seems to me that it's not really a question of greed.	It probably is a question of inappropriate organisation of your finances.	And if it's not that, it's probably need."

Mr Smith of counsel for the appellant submitted that on the facts the monthly expenses disclosed by the respondent showed that he had supported his business venture with the social security payments, and thus his case was one of "greed" rather than "need", in terms of the Vasin distinction.	The respondent was aware that he was obliged to reveal the fact that his wife or he himself was working. He made no attempt to report what he had done; his offences ceased simply because he and his wife had ceased to be employed.	Further, although he had later gained employment from 24 April 1990 until he appeared before the Magistrate on 26 June, he had made no attempt to make reparation from those wages.

On the sentencing principles applicable to offences of this type Mr Smith referred to many authorities.	I deal with only a few of them.

In R v Medina (unreported, Court of Criminal Appeal (NSW), 28 May 1990) Clarke JA referred to a number of authorities and said:-

"[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."

I respectfully agree.	The importance of general deterrence in sentencing for these offences is obvious.

In Buchanan v Bain (unreported, Olney J, 9 October 1987), a case somewhat similar to the present, the offences had occurred over some 16 weeks and the amount unlawfully obtained was $3667.44.	The Magistrate had placed the respondent on a good behaviour bond for 2 years, conditioned on his making reparation of that sum.	Olney J noted that at the time of the offences the maximum penalty was a fine  of $2000 or imprisonment for 12 months.		His Honour said that a breach of the Social Security Act should attract "a significant penalty", and reparation of the amount "fraudulently obtained is but incidental to the process of prosecution - - -"	His Honour considered that the Magistrate's disposition  "amounts to a positive encouragement to would-be law breakers to commit frauds upon the _social security system"; he considered that a short term of imprisonment was called for.	In light of the history of the matter, however, he imposed a fine of $400 for each offence.

In Fisher v Gibson (unreported, Neasey J, 18 August 1986) his Honour noted that a number of matters "tend to be constant in this context".	They included the fact that the offences are prevalent and difficult to detect and prove, with the consequence that penalties should reflect a concern to protect the revenue; that frauds of this type increase the cost of funding the social security system, and the eby reduce the funds available for those who genuinely qualify; and that a series of frauds increases the moral blameworthiness of the offender.	Neasey J considered that a custodial sentence may well be appropriate in the case of serious frauds not accompanied by substantial mitigating circumstances.

In Culverwell v Jongen (unreported, Burt CJ, 21 May 1982), the amount of overpayment was $4674.30.	The Magistrate imposed a sentence of 1 month's imprisonment.  Burt CJ observed that while the application of the "just deserts" principle pointed to a prison sentence, "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."	His Honour quashed the sentence and substituted a good behaviour bond under s.20 of the Crimes Act.	His Honour specifically stated that his decision should not be taken as authority  for the view that offences of this type "should be appropriately met by placing the offender on a bond."

Mr Smith handed up a schedule showing some 20 sentences imposed by the Court of Summary Jurisdiction at Darwin for offences against s.239 of the Social Security Act, from January 1988, where the amount involved was between $1000 and $5000.	In every case a conviction was recorded, the sentences ranging from release on a good behaviour bond through community service orders, fines and terms of imprisonment - the latter being frequently suspended under
s.20 of the Crimes Act.	It is clear that a suspended sentence of imprisonment is well within the range of punishment for this offender; see, for example, Fry v Basset (1986) 85 FLR 334.

I turn to the grounds of appeal.	I consider that there is no substance in grounds 2, 4 and 6.		As Muirhead J pointed out in Davey (1980) 2	Crim R 254 at p.261, in general remarks equally applicable to a sentencing Magistrate:-

"A judge's remarks on sentence will seldom reveal all the matters he takes into consideration.
Foremost should be his anxiety to protect the public, but judicial assessment of the prisoner,

the prisoner's family and background, his opportunities, his demeanour, his remorse and the precipitating factors causing the offence, all play their part.		Remarks on sentence should not be reviewed on appeal as though they are a reserved judgment.	They are frequently made extempore and in conversational manner, but generally only after anxious thought."	(emphasis mine)

As to ground 7, I accept Mr Smith's submission that
'	applying the Vasin test this case on its facts falls within
\	the concept of fraud for "greed" rather than "need".	The
gradations ·of "greed" are innumerable, and this case is by no means a very bad example of fraud for greed; the Magistrate's remarks are perfectly understandable.	As to grounds 1, 3 and 5, I accept Mr Smith's submission that in the circumstances  of the case the discharge of the respondent on a good behaviour bond without passing sentence was manifestly inadequate.	I apply the approach as stated by Clarke JA in R v Medina (supra), set out at p.10 above;  in this case I am unable to find any "very special circumstances justifying some lesser order" than a custodial sentence.

Accordingly, I uphold the appeal and quash the order  made by the Court of Summary Jurisdiction.	It is unnecessary  to remit the case for sentencing.	I proceed to sentence.	A single sentence may be imposed for all seven offences.

I consider that a sentence of imprisonment was the only appropriate sentence in the circumstances of the case, bearing in mind everything which could be said for the offender.	Whether or not such a sentence should be suspended, in part or in whole, is a matter which would have been open to the sentencing Magistrate to consider, a suspended sentence being well within the proper sentencing range, in the particular circumstances of the case.	I bear

in mind that this is a Crown appeal and note the remarks of Deane Jin	Griffiths v The Queen (1989) 167 6 CLR 372 at p.386, in dealing with Crown appeals, viz:-

" - - the case involves an aspect of double jeopardy in that the increase of the applicant's sentence and non-parole period by the Court of Criminal Appeal represents a deprivation of liberty which had already been in jeopardy before the sentencing judge.	The Court of Criminal Appeal was, no doubt, referring to that aspect of the case when it indicated that the head sentence which it imposed was less than would have been appropriate were it not for the fact that it was being imposed as an increased sentence by an appellate court." (emphasis mine)

In the light of those remarks I am fortified in the conclusion I had already reached that while a sentence of 3 months imprisonment should be imposed, service of that sentence should be suspended forthwith upon the prisoner entering into his own recognizance in the sum of $500 to be of good behaviour for 12 months.	I do not make it a condition of that bond that he repay the sum of $1388.64, as the appellant specifically asked that no such condition be imposed.

Orders accordingly.