PARTIES:	SHEPHERD, Betty Marcell

		v

		HOLLAND, Cheryl Rose

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE 			NORTHERN TERRITORY OF 			AUSTRALIA EXERCISING 			TERRITORY JURISDICTION

FILE NO:	JA 45 of 1996

DELIVERED:	28 November 1996

HEARING DATES:	15 October 1996

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS:

	Appeal and New Trial - Appeal - General principles - In general
and right of appeal - Justices appeal - Appeal against sentence - Whether manifestly excessive in sentencing applicant to actual term of imprisonment - Knowingly obtaining payment of allowances contrary to s1347 Social Security Act 1991 (Cth) - First offender - Systematic and continuing course of conduct - Factors in determining whether sentence manifestly excessive - Comparative statistics - Appeal allowed.

Crimes Act 1914 (Cth), s16, s20(1)(b), s20AB
Crimes Regulations (Cth), reg6(a)
Sentencing Act 1995 (NT), s44(3)(a)(b) and (c)
Social Security Act 1991 (Cth), s1347

House v The King (1936) 55 CLR 499, at 505, considered.
Kelly v The Queen (1991-92) 33 FCR 536, referred to.
The Queen v Morse (1979) 23 SASR 98, referred to.
Slattery v Davis (1993) 11 FLR 250, considered.
Winkler v Cameron (1981) 33 ALR 663, at 667, considered.

REPRESENTATION:

Counsel:

	Appellant:	James Watson
	Respondent:	Theresa van Gessel

Solicitors:

	Appellant:	NAALAS
	Respondent:	AGS

Judgment category classification:	B
Judgment ID Number:	mar96021
Number of pages:	12

mar96021

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. JA 45 of 1996

		BETWEEN:

		BETTY MARCELL SHEPHERD
			Appellant

		AND:

		CHERYL ROSE HOLLAND
			Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 28 November 1996)

	This is an appeal against sentence imposed in the Court of Summary Jurisdiction sitting at Darwin on 24 May 1996 consequent upon the appellant’s being convicted upon her pleas of guilty to three charges that she did knowingly obtain payment of allowances and thus contravened s1347 of the Social Security Act 1991 (Cth).  The Court imposed a sentence of six months imprisonment, but ordered that it be suspended after one month upon her entering into a recognizance in the sum of $1000 to be of good behaviour for two years.  The total amount received in contravention of the Act was $9027.04.
	The grounds of appeal are that the sentence was manifestly excessive in that the learned Magistrate erred in law in sentencing the applicant to an actual term of imprisonment.

	The facts as taken from the transcript upon the proceedings before his Worship are as follows:

“Your Worship, the defendant was in receipt of Job Search Allowance between 12 January 1994 and 20 January 1995 and she then commenced receipt of New Start Allowance and she received that on 21 January ‘95 until 4 August 1995.

Between 25 February 1994 and 18 March 1994 the defendant was employed by Nungalinya College on a casual basis.  During this period she was paid $2087.73 gross by the college.  She did not declare her employment, or the income that she received from that employment, to the department, and as a result she was paid $666.60 in Job Search Allowance to which she was not entitled.

On 15 November 1994 the defendant made a written statement to an officer of the department in which she stated that she had been working at the college.  She stated: ‘The reason I didn’t advise the department of this was because I was short of money.  I am aware that I must advise the department of any income I receive and I must do this each fortnight that I earn money.’

Between 29 May 1994 and 17 February 1995 the defendant was employed by JR Security on a casual basis.  During this period she failed to advise the Department of Social Security of her income or employment.  As a result she was paid $3867.24 in benefits that she was not entitled to.

On 25 January 1995 the defendant provided the Department of Social Security with a written statement in which she admitted that she had been working and in which she stated: ‘I have not declared to the department my wages as I am heavily in debt with AGC Finance, electricity and phone bills.  I also have accommodation and living expenses.

In early 1995 the defendant lodged an application for ABSTUDY with the Department of Education, Employment and Training.  She commenced receiving ABSTUDY from 6 March 1995.  She was granted ABSTUDY until 31 December 1995.  The defendant did not inform the Department of Social Security of her receipt of ABSTUDY and as a result was paid $4493.20 in New Start Allowance, which she was not entitled to.

The total amount of money which the defendant has received as a result of these offences is $9027.04.  She has repaid $1226.40 towards her debt, and reparation is sought under section 21B of the Crimes Act, in the sum of $7800.64.”

	It will be noted that the offending covered three discreet periods in relation to three separate allowances.  She was first made aware that the Department concerned had details of her first offence when interviewed on or about 15 November 1994 when, amongst other things, she acknowledged that she was aware that she must advise the Department of any income received each fortnight.  Notwithstanding that she continued to offend after that date, and was spoken to again on or about 25 January 1995 when she acknowledged not having declared income and put forward an excuse for not doing so.  In relation to the third matter, she obtained allowances under the Act from two separate sources when not entitled to do so.  That she had been caught out on the first occasion clearly had no effect upon her conduct thereafter.  She engaged in a systematic and continuing course of conduct in contravention of the Act.  His Worship dealt with the matter very briefly, saying that he had taken into account things that had been put on her behalf, and which he would turn to shortly, but said that she had stolen a lot of money and showed no remorse, having continued to offend after being first detected.  His Worship noted that restitution had been made in the sum of $1200 and simply said that he intended to send her to gaol for a short period, which he proceeded to do.  He went on to say that there would be an order for reparation pursuant to s21B of the Crimes Act 1914 (Cth).  Having imposed the sentence and made the order his Worship said:

“This is to deter you and to prevent others from doing this.  It wasn’t the case of need only, there is a case of greed there as well.  There’s a vehicle that you couldn’t afford, you should not have had.  But the main thing is this deceit on your part” 

	At the time that she was sentenced the appellant was 25 years of age, having been born in Darwin and living there all her life.  She was born of an Aboriginal mother and a European father.  She was educated to the conclusion of year 11 and then worked as a apprentice chef for three and a half years.  She worked for a year and a half in Adelaide, and at the beginning of 1994 returned to Darwin.  Her financial situation was not good.  She had expended her savings in obtaining the airfare to return to Darwin.  Her financial situation became worse in that she had a $3000 loan on a car to be repaid at $40 a week, but which was in arrears.  Other people had also caused her to get into debt, for a telephone account to the extent of $700, and she had other bills to pay.  All that was in addition to her normal rent and living expenses.  In was in that situation that she obtained the job search allowance which she said went on expenses and paying bills.  Given the opportunity of three weeks work at Nungalinya College, she took it up and did not declare her earnings because she said she was in desperate need of the money.  She put forward the same reason for working at JR Security when she was employed at weekends in nightclubs, assisting security staff.  The allowances and income which she had received, however, were not apparently improving her financial position.  She decided to take up study to help her employment prospects at which time she applied for, and was being paid both the job search and Abstudy allowances.  Notwithstanding the income received, her financial position did not improve and her counsel informed the Court that she had made application in bankruptcy. The repayment made to the Commonwealth up to the time she was sentenced, had been achieved by deductions from a fortnightly allowance still being paid to her under the Social Security Act.  Her financial situation had been so bad that she had spent 13 days in gaol prior to these matters coming on for hearing for failure to pay fines for motor vehicle offences.  

	To compound matters, she was at the time this matter came before that Court due to give birth within a few days.  It was put by her counsel on that hearing that her offending had been brought about solely by her financial difficulties, that she had a good work record, no relevant prior offences, had admitted her offending, pleaded guilty and acknowledged that what she had done was deceitful.  Her justification was put down to need and not greed.  It was submitted on her behalf that she could be dealt with under the tariff which was said to prevail for first offenders, that is, by way of suspended sentence coupled with a bond.

	The prosecutor acknowledged that the normal range of penalty indicated by the amount of money involved in this case would be a suspended sentence, but argued that this particular offending was more serious because on three occasions the appellant had participated in the same sort of activity.  She had acknowledged that she knew that what she had done was wrong, but at the time that she had made those admissions she was offending further and did not desist.  It was urged upon his Worship that it was a case for specific deterrence as well as general deterrence.

	The appellant was released on bail on the same day as she was sentenced consequent upon her lodgment of the Notice of Appeal.

	I bear in mind that an appeal against sentence imposed in the exercise of a discretion is to be considered in the light of the guidance provided in cases such as House v The King (1936) 55 CLR 499 at 505:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.  (See also Cranssen v The King (1936) 55 CLR 509).

	I also bear in mind that magistrates who often deal with cases such as this are likely to have a far better knowledge of the tariff or other standards of sentencing imposed in the Court of Summary Jurisdiction, and that unless it can be shown that that experience has been misplaced, then it is entitled to significant weight upon an appeal.  That leads to the consideration of the first ground of appeal, that is, that the sentence was manifestly excessive.  In determining that question one looks to the maximum sentence, the standards of sentencing customarily observed with respect to offending of that particular type, and the place which the criminal conduct occupies on the scale of seriousness of crimes of that particular type, as well as the personal circumstances of the offender.  Of course, it is not always possible to pay regard to some of those factors because of lack of information.  See for example The Queen v Morse (1979) 23 SASR 98.  The Federal Court followed R v Morse in Kelly v The Queen (1991-1992) 33 FCR 536.  The maximum penalty for each of the offences was 12 months imprisonment or a fine of $6000 or both.  With reference to the question of the standards of sentence customarily observed with respect to the particular crime, see the observations of Legoe J. in Winkler v Cameron (1981) 33 ALR 663 at 667.  His Honour points out, as is plainly obvious, with respect, that so-called comparative statistics must be approached with a degree of caution dependent upon not only the quality of the material but as well the number of cases included in the survey and the period of time at which they are taken and the place in which they are taken.

	This Court was provided with summaries of 83 cases involving sundry offences against the Social Security Act, all going to prohibited means of attempting to obtain or obtaining social security payments which are broadly set out in ss1343 to 1348 of the Act.  By s1353 it is provided that a court may impose one penalty for all offences before it at any particular time, and there is also a power in ss1351 and 1358 for ordering repayment and enforcement of an amount ordered to be repaid as if it were a final judgment in the relevant court.  The cases involved sums of money ranging from about $1400 to in excess of $80000.  For the purpose of this case I have paid particular attention to those concerning sums of less than $10000, which amounted in all to 70 of the cases, 42 of them for less than $5000.  Most cases involved the receipt by the offender of a number of payments over varying periods of time, some continuous and some not.  The penalties involved in the vast majority of cases were sentences of imprisonment suspended upon the offender entering into a bond to be of good behaviour for varying periods of time.  The majority of those cases involved orders for repayment of the amount in question.  Comments were made in many cases as to whether the sentencing tribunal considered the offending to have arisen from need rather than greed or visa versa.  Reasons for becoming involved in offending varied widely from money troubles through to confusion about forms and reckless conduct in filling out the forms.  There was a bad case in 1994 involving about $8000 where the offender had a prior conviction in 1977.  There were 26 counts, and he had given a false name as part of a scheme to obtain benefits and failed to disclose not only his own income, but also that received by his wife.  For that he was sentenced to 16 months imprisonment but suspended after three months upon his entering into a bond to be of good behaviour for 18 months.  It seems to me that that particular case was the “worst case” amongst those made available.  It is not proposed to go into the detail in respect of all of those sentences, since it is trite to say that they have to be regarded in the light of the particular offending and circumstances of the particular offender.  However, there are some exceptions to the broad rule that offences involving sums of money of this order, without the offender having prior convictions, are usually dealt with by way of suspended sentence to imprisonment.  There are a few cases involving sums of up to $5200 where the offender has been ordered to undergo community service work for varying periods of time, ranging from 144 hours to 300 hours.  In one such case which had many features worse than this, although the amount involved was only $4000, the penalty was 300 hours of community service work.  The imposition of a fine is rare, and that may be understandable upon the basis that most offenders have offended because of financial difficulty and thus would not be in a position to meet a fine.  In a case where the sum involved was $6300 and the offender had prior convictions a suspended sentence was imposed, but he was also ordered to serve 160 hours for community service and make reparation.  The imposition of orders that the offender be detained at home under supervision has been utilised occasionally, in one case where the amount involved was $8250, the period of detention was eight months, similarly in a case involving $9700 and the period was seven months in another matter involving $8400.

	My survey of the information did not disclose many cases where the offender had been on notice from the Department that the commission of an offence had been detected and the offending continued thereafter whether in the same or similar form.  It was that feature which particularly concerned his Worship in this case, and I share his concern.  The appellant exploited three different systems for the payment of social security benefits whilst receiving other income.  She knew that what she was doing was wrong and she continued notwithstanding it becoming obvious that the Department had caught her out.  On the information available to this Court this is a bad case of its type.  The amount involved was substantial, but it is relatively modest in the scale of things.  It is plain that a sentence to imprisonment is the almost invariable outcome of offending of this type.  One assumes that the Court of Summary Jurisdiction is satisfied that no other sentence is appropriate in all the circumstances of individual cases, and bears in mind the provisions of s17A of the Crimes Act.  There is no appeal against the sentence of imprisonment being imposed.  What is complained about is the failure of his Worship to suspend that sentence and give the offender the benefit of a bond enabling her to serve the whole of the sentence in the community.  Such an order is referred to in the Crimes Act as a “recognizance release order” see s20(1)(b) and definitions in s16.  

	On the information available, broadly described above, I am satisfied that the appellant has made out the ground relied upon.  There is nothing significant in the appellant’s case to set her apart from the large number of other offenders dealt with in a more lenient way.  Counsel for the appellant put to his Worship that she could be dealt with under what he thought was the tariff for first offenders, that is, by way of suspended sentence coupled with a bond.  The prosecutor before his Worship did not suggest it was an appropriate case for the imposition of a partly suspended sentence involving an actual term of imprisonment.  Although pointing to the seriousness of the offending, it was simply put that there was a need for specific deterrence as well as general deterrence.  Nobody in the Court of Summary Jurisdiction seems to have given any passing thought to the effect which there might be arising from the imminent birth of the appellant’s baby.  In the circumstances, it may or may not have made any significant impact upon the appropriate sentence, but it was a singularly peculiar factor in the case deserving express attention.

	At the request of counsel for the appellant, an order was made by me that a report be obtained as to the suitability of the appellant to be the subject of a home detention order and the assessment was received quite recently.  It discloses that the appellant lives in a house in suburban Darwin with her baby daughter and there are no issues of concern regarding other residents or neighbours.  She is considered suitable for sentencing to a period of home detention and has consented to an order being made.  As to the jurisdiction to make such an order, see s20AB of the Crimes Act and reg6(a) of the Crimes Regulations (Cth).

	Given the standards of sentencing of the Court of Summary Jurisdiction and of this Court, demonstrated on the information available, the sentence has the appearance of being unjust in so far as it requires the appellant to be incarcerated for a month.  There is nothing in the circumstances of the offending, nor in the personal circumstances of the appellant that would take her case out of the class of cases for which a fully suspended sentence of imprisonment is the usual punishment, particularly when coupled with an order for repayment.  

	In coming to this conclusion I bear in mind the foregoing and with respect, the very detailed reasons for decision of Kearney J. in Slattery v Davis (1993) 111 FLR 250 (a “dole cheating case”).  His Honour paid particular attention to the following matters:

	.	information as to current tariffs in the Territory;
	.	guidance obtained from previous decisions in this and other courts
as to the seriousness of social security fraud;
.	the desirability that warning be given before any substantial
departure is made on current standards of penalties.

	I bear in mind the several requirements of the Crimes Act as to sentencing for federal offences.  The appeal against the sentence imposed by the Court of Summary Jurisdiction is allowed and that sentence quashed.  Having received a report from the Director under s45 of the Sentencing Act 1995 (NT) and noting the consent of the appellant, I am satisfied that it is desirable in the circumstances that the appellant be sentenced to a term of imprisonment of six months, but that an order be made suspending the sentence on her entering into a home detention order for a period of eight months.  The place at which she is to reside is 13 Wearing Crescent, Karama.  The order is subject to the terms and conditions detailed in s44(3)(a)(b) and (c) of the Sentencing Act.  The appellant is not to leave the precincts of the Court until she signs the order.  The Sheriff is directed to provide a copy of the order to the appellant and to send a copy to the Director.

	The order for repayment is undisturbed.
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