AARON DAVID LADD v SERVICES AUSTRALIA [2024] SASC 63

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SOETRATMA) AMC-21-12122; AMC-21-12123 First Appellant: AARON DAVID LADD Counsel: MR S NOTTLE - Solicitor: MANGAN EY & ASSOCIATES Second Appellant: STEPHANIE NOBLET Counsel: MR W MICKAN - Solicitor: CALDICOTT & ISAACS Respondent: SERVICES AUSTRALIA Counsel: MS J DAVEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 19/04/2024 File No/s: SCCRM-23-046891; SCCRM-23-046892 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LADD v SERVICES AUSTRALIA; NOBLET v SERVICES AUSTRALIA [2024] SASC 63 Judgment of the Honourable Justice Kimber 10 May 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT This is a judgment in relation to two separate appeals against sentences imposed by a Magistrate in relation to dishonesty offences against the Department of Human Services (now Services Australia). After making the allowances for the guilty pleas of each appellant, the Magistrate sentenced Mr Ladd to six months imprisonment and Ms Noblet to 10 months imprisonment. The Magistrate made a recognizance release order in relation to both appellants upon giving security by recognizance in the sum of $1,000 that each be of good behaviour for a period of two years. Mr Ladd was ordered to serve a period of four weeks imprisonment. Ms Noblet was ordered to serve a period of six weeks imprisonment. Both appellants contend that the Magistrate erred in failing to properly consider whether the sentence ought to have been served subject to a home detention order. Both appellants also contend that the sentences were manifestly excessive by virtue of failing to order immediate release on a recognizance release order or alternatively, in failing to order that the sentence of imprisonment be served subject to a home detention order. Held, dismissing both appeals: 1. The Magistrate’s reasons for declining to order that the respective sentences be served on home detention were brief but, in the circumstances, including the submissions of each appellant before the Magistrate, those reasons were sufficient. 2. The sentences imposed were not manifestly excessive. While the sentence imposed on Ms Noblet was a heavy one considering her personal circumstances, in the case of both -- 1 of 19 -- appellants, given the offending and the importance of deterrence, neither sentence was outside the permissible range of sentences for the relevant offending and relevant appellant. Criminal Code Act 1995 (Cth) ss 134.2(1), 135.1(5); Social Security Act 1991 (Cth) s 4; Sentencing Act 2017 (SA) s 71; Crimes Act 1914 (Cth) s 16A(1)–(2), referred to. House v The King (1936) 55 CLR 499; Lowndes v The Queen (1999) 195 CLR 665; R v Wilton (1981) 28 SASR 362; Markarian v The Queen (2005) 228 CLR 357; Kentwell v The Queen (2014) 252 CLR 601; Hili v The Queen (2010) 242 CLR 520; The Queen v Pham (2015) 256 CLR 550; Kovacevic v Mills (2000) 76 SASR 404; R v Cameron and Simounds (1993) 171 LSJS 305; Evdochim v The King [2022] SASCA 140, applied. R v Hevko (2018) 272 A Crim R 191; R v Hibjelic [2018] SASCFC 35; R v Dell (2016) 126 SASR 571; Laxton v Justice (1985) 38 SASR 376; Walsh and Another v Department of Social Security (1996) 67 SASR 143, considered. -- 2 of 19 -- LADD v SERVICES AUSTRALIA; NOBLET v SERVICES AUSTRALIA [2024] SASC 63 Magistrates Appeal: Criminal 1 The appellants appeal against sentences imposed by a Magistrate on 19 December 2023. 2 Ms Noblet pleaded guilty to three offences. The first offence is a single count of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code 1995 (Cth) (the Code) involving conduct between 23 March 2016 and 8 August 2018. The maximum penalty was 10 years imprisonment or a pecuniary penalty not exceeding $108,000, or both. The second and third offences are two counts of dishonestly causing risk of a loss contrary to s 135.1(5) of the Code. The first count involves conduct between 23 January 2017 and 3 May 2017, and the other involved conduct between 8 August 2017 and about 15 November 2017. The maximum penalty for the first count was five years imprisonment, or a pecuniary penalty not exceeding $54,000, or both. The only difference in the maximum penalty for the second such offence was that the relevant pecuniary penalty was a sum not exceeding $63,000. 3 In the case of Ms Noblet, the Magistrate adopted a single starting point of one year. After a reduction for the pleas of guilty, a sentence of 10 months was imposed. The Magistrate ordered that there be release after six weeks upon giving security by recognizance in the sum of $1,000 that Ms Noblet be of good behaviour for two years. 4 Mr Ladd pleaded guilty to a single count of obtaining a financial advantage by deception contrary to s 134.2(1) of the Code involving conduct between 30 August 2016 and 9 August 2018. The maximum penalty was the same as for the same offence committed by Ms Noblet. 5 In the case of Mr Ladd, the Magistrate adopted a starting point of eight months. After a reduction for the plea of guilty, a sentence of six months was imposed. The Magistrate ordered that there be release after four weeks upon giving surety by recognizance in the sum of $1,000 that Mr Ladd be of good behaviour for two years. 6 For the reasons which follow, I dismiss both appeals. The Notices of Appeal 7 The grounds of appeal for each appellant are identical and are as follows: 1. The sentencing discretion miscarried by virtue of the failure to properly consider whether the sentence ought to have been served subject to a home detention order. -- 3 of 19 -- [2024] SASC 63 Kimber J 2 2. The sentencing discretion miscarried by virtue of the failure to order immediate release on a recognizance release order. 3. In the alternative, the sentencing discretion miscarried by virtue of the failure to order that the sentence of imprisonment be served subject to a home detention order. The offending 8 The conduct the subject of the offences and the circumstances in which it occurred are not disputed. Before outlining the offending, it is necessary to say something about ‘parenting payments’ as defined in the Social Security Act 1991 (Cth) (SS Act). A ‘parenting payment’ is payable to persons caring for dependent children until the date of the youngest child’s eighth birthday. The ‘parenting payment’ payable is affected by the recipient’s relationship status (i.e. - single or partnered) and by other income received by the person (e.g. - from employment). The amount payable to claimants with a partner is affected by income earned by the partner. A ‘parenting payment single’ is payable to persons who are not partnered (i.e. - not a ‘member of a couple’ as defined in s 4 of the SS Act). 9 In 2017, a review was commenced in relation to both Mr Ladd and Ms Noblet. On 5 September 2018, search warrants were executed by the Australian Federal Police. The next day, it was determined that Mr Ladd and Ms Noblet were in a relationship, and that had been the case at the time of their respective offences. The offending of Mr Ladd 10 On 30 August 2016, Mr Ladd lodged an online claim form for parenting payment single which contained false statements about his relationship with Ms Noblet. Mr Ladd stated that he had separated from Ms Noblet on 9 August 2016; that while he lived with Ms Noblet, he did so only as a ‘friend or housemate’; that he had not previously lived together with Ms Noblet as a couple; that he and Ms Noblet did not have joint financial commitments; that others did not regard them as a couple; and that he had three children in his care, including a child with Ms Noblet, S. 11 On 13 September 2016, as a result of the information provided by Mr Ladd, the claim was granted and payments of parenting payment single to which he was not entitled were made between 22 August 2016 and 9 August 2018. 12 During the period of the offending, Mr Ladd was unemployed and was not required to regularly report to continue to receive social security benefits. However, Mr Ladd remained subject to an ongoing obligation to report an event or change in circumstances, such as entering a relationship and being a member of a couple. Despite numerous opportunities throughout the relevant period, Mr Ladd failed to truthfully report his ongoing relationship with Ms Noblet. -- 4 of 19 -- [2024] SASC 63 Kimber J 3 13 During the relevant period, Mr Ladd received $40,818.00 in social security benefits. Of that sum, Mr Ladd was eligible to receive $25,270.78. Therefore, the total overpayment obtained by Mr Ladd during the relevant period was $15,547.22. The offending of Ms Noblet 14 In 2013, Ms Noblet was granted a parenting payment single after she separated from her then partner. On 5 December 2015, S, the child with Mr Ladd, was born. By no later than March 2016, Ms Noblet and Mr Ladd were living together and held a joint bank account. At all relevant times while in receipt of parenting payment single, Ms Noblet remained subject to an ongoing obligation to report an event or change in circumstances within 14 days, such as living with a partner and changes in income. 15 Ms Noblet was employed by one employer from 23 January 2017 to 1 May 2017 and by another from 22 August 2017 to 15 November 2017. Those periods of employment resulted in her committing the two offences contrary to s 135.1(5). During each period of employment, Ms Noblet was required to report employment income each fortnight. On 14 occasions via the Centrelink mobile application and on one occasion via telephone, Ms Noblet falsely stated that she had earned no income. 16 From 2 May 2017 to 7 August 2017, Ms Noblet’s parenting plan single payments were cancelled because it became apparent that she was earning income from the first of the above employers above the relevant threshold. On 2 August 2017, Ms Noblet submitted a further claim for parenting payment single, falsely stating that she had separated from Mr Ladd on 28 November 2014 and that she was sharing her accommodation with a friend. On 9 August 2017, parenting payment single payments were resumed. Ms Noblet continued to receive those payments until 8 August 2018. Ms Noblet ultimately received payments totalling $16,363.68 to which she was not entitled. Personal circumstances of the appellants 17 Ms Noblet and Mr Ladd are no longer in a relationship. 18 At the time of sentence, Ms Noblet was 29 years of age and had no prior convictions. The Magistrate had before him letters from persons who supported Ms Noblet. Ms Noblet has experienced significant physical and mental health issues. She has had surgery for intracranial hypertension; has been diagnosed with borderline personality disorder and complex post-traumatic stress disorder; and reported being suicidal in 2021. By the time of sentencing, Ms Noblet had re-partnered and has a daughter who is now about 10 months old. Ms Noblet also has the care of the daughter of her new partner from another relationship. S was born on 5 December 2015 and is now eight years of age. Ms Noblet and Mr Ladd share custody of S with that child living with the appellants in alternate weeks. S has been diagnosed with both attention deficit hyperactivity disorder (ADHD) -- 5 of 19 -- [2024] SASC 63 Kimber J 4 and autism spectrum disorder (ASD). Ms Noblet has another child to whom I will later refer. 19 At the time of sentence, Mr Ladd was 46 years of age. Mr Ladd has some prior convictions, primarily relating to driving offences. He has no history of committing offences like that for which he was sentenced. At the time of sentence, he had been employed since August 2022. Before the Magistrate, in a submission repeated on the hearing of the appeal, it was submitted that Mr Ladd’s employment would be at risk if a sentence involving imprisonment or home detention was imposed. That submission does not find support in an email dated 9 August 2023 from Mr Ladd’s employer provided after the hearing of the appeal. That email sets out that Mr Ladd had successfully completed a three-month review and had performed extremely well. However, the email also sets out that ongoing employment depended upon whether a conviction was recorded in this matter and that ‘any conviction recorded will result in immediate termination of your credentials and contract’. It follows it would be inappropriate to proceed on the basis that Mr Ladd’s employment would be at risk if he is imprisoned or required to serve a home detention sentence. The email from the employer is only consistent with conviction alone being an obstacle to ongoing employment which cannot be overcome. There is no question that a conviction is appropriate. This is not to say that Mr Ladd’s positive performance while employed is a matter which I will overlook. 20 Mr Ladd has also re-partnered. He shares the care of the two sons of his new partner as well as custody of S on the basis set out above, and of another child to whom I will later refer. Mr Ladd also relied upon material from four people who were supportive of him. Ground 1 21 As set out below, in Ground 1, the complaints of both appellants are that the Magistrate ‘failed to properly consider a home detention order’. The appellants submitted on appeal that it was incumbent upon the Magistrate to give ‘a fulsome explanation’ of why that sentencing option was not appropriate and that what the Magistrate did say was insufficient. The submissions before the Magistrate 22 Before the Magistrate the prosecution submitted, with respect to both appellants, that home detention was one of the sentencing options within a proper exercise of the sentencing discretion. As I understand it, while neither appellant addressed in any detailed way the discretion to impose a home detention sentence, both appellants submitted that a non-custodial outcome was appropriate. It can be accepted that such submissions encompassed the imposition of a home detention sentence but: neither appellant made any submission about being an appropriate person to serve a sentence in that way; neither appellant assisted the Magistrate by providing the address at which they would reside; nor did either appellant submit that a report might be ordered. The approach of both appellants reflects that the -- 6 of 19 -- [2024] SASC 63 Kimber J 5 primary submission was that a sentence with immediate release on a recognizance release order was appropriate. The approach of the Magistrate 23 It is necessary to outline some of what occurred when the sentences were imposed. 24 The Magistrate gave separate sentencing remarks for each appellant but sentenced both in the same hearing one after the other. In the sentencing remarks for each appellant, the Magistrate set out in some detail the respective offending of each appellant and their personal circumstances. It is not submitted that the Magistrate misstated or overlooked any relevant matter. 25 Having determined in the case of each appellant that no sentence other than imprisonment was appropriate and having arrived at the respective sentences of six months and 10 months, the Magistrate said with respect to Mr Ladd:1 In deciding whether to require you to serve a term of imprisonment immediately prior to release on recognizance, and if so how long any such period should be, I am required to set the minimum time that justice requires you to serve. That is a decision informed by the factors in section 16A(2) of the Crimes Act that I have mentioned already. it requires me to balance general and personal deterrence against your personal circumstances and those of your family and dependence [sic], and the scope that now exists for your rehabilitation in the community. 26 With respect to Ms Noblet, the Magistrate said:2 That means that I must make a recognizance release order, and I will do so. In deciding whether to require you to serve a term of imprisonment immediately, prior to release on recognizance, and how long any such period should be, I am required to set the minimum time that justice requires you to serve. As a decision informed by the factors in section 16A(2) of the Crimes Act that I have mentioned already, it requires me to balance general and personal deterrence against your personal circumstances, and those of your family and dependents [sic] - particularly [S] - and the scope that now exists for your rehabilitation in the community. After considering all of those matters, I direct that you be released after serving a period of 6 weeks imprisonment upon you giving security by recognizance in the sum of $1000, that you will be of good behaviour for a period of 2 years. 27 In the main body of the sentencing remarks for each appellant, the Magistrate made no reference to having considered home detention. Nevertheless, the appellants do not dispute the Magistrate considered that sentencing option given what the Magistrate said immediately after sentencing Ms Noblet. 28 I turn to what the Magistrate said. Before the Magistrate, the appellants were represented by the same counsel. At the end of the sentencing of Ms Noblet, that counsel raised that the Magistrate had not mentioned home detention or the matters 1 Appeal Book p 38. 2 Appeal Book p 140. -- 7 of 19 -- [2024] SASC 63 Kimber J 6 in s 71 of the Sentencing Act 2017 (SA) (Sentencing Act) which deals with that sentencing option. The Magistrate said that, in the case of both appellants, he had considered, but rejected, that approach. The Magistrate said that it had been rejected ‘as an appropriate course … bearing in mind the nature of the offending … and what is required as minimum punishment’.3 29 On the hearing of the appeal, the complaint of both appellants in Ground 1 was that the Magistrate had not given an adequate explanation about why home detention was not appropriate. The prosecution having submitted that home detention was within the discretion of the Magistrate and both appellants having submitted that a non-custodial outcome was appropriate, both appellants submitted that what the Magistrate said was insufficient. 30 The appellants placed reliance upon R v Hevko.4 In R v Hevko, the appellant was sentenced to two years and four months imprisonment with a non-parole period of 15 months after pleading guilty to one count of trafficking in a controlled drug. The sentencing Judge cited the seriousness of the offence, the importance of general and personal deterrence and the appellant’s offending history in deciding that ‘it is not appropriate to exercise the discretion to make a home detention order’.5 The appellant appealed, arguing that the sentencing Judge erred in finding that the seriousness of the offence and need for deterrence outweighed matters personal to the appellant. The Full Court of the Supreme Court allowed the appeal. 31 The Chief Justice (Kelly J agreeing) held that in the generality of cases, brief remarks such as those made by the sentencing Judge would sufficiently address the question of home detention.6 Nevertheless, the Chief Justice held that the sentencing Judge’s reasons failed to expressly address a salient feature of the offence (its potentially isolated nature) nor the appellant’s circumstances which militated strongly in favour of home detention. 32 Nicholson J (with whom Kelly J also agreed) stated:7 There will be cases where the basis upon which an order for home detention has been refused is relatively straightforward. In such circumstances it may not be necessary for a judge to set out detailed reasoning leading to that conclusion. However, there will be cases where the discretion to order home detention is fairly open on the evidence in which cases it usually will be incumbent on a judge to provide a more fulsome explanation as to why the discretion has been exercised in the way it has been. In my view, this was a case where such an order was fairly open on the evidence. 33 Nicholson J held that a sufficiently fulsome explanation had not been given. 34 In the submissions before me, the respondent submitted that neither appellant had submitted that home detention should be imposed. Putting that aside, the 3 Sentencing Remarks for Ms Stefanie Noblet p 6. 4 (2018) 272 A Crim R 191. 5 Ibid 199 [38]. 6 Ibid 193 [5]. 7 Ibid 207 [62]. -- 8 of 19 -- [2024] SASC 63 Kimber J 7 respondent emphasised that it was important to read the sentencing remarks as a whole and that, once read in that way, all relevant matters were considered by the Magistrate. The respondent relied upon the approach of Doyle J (Peek and Blue JJ agreeing) in R v Hibjelic.8 35 In R v Hibjelic, it was held:9 It is true that R v Hevko emphasises the need to ensure that proper attention is paid to the particular nature of the discretion to order that a sentence of imprisonment be served on home detention. While the range of considerations relevant to that discretion reflects the same matters relevant to the earlier exercises of discretion in arriving at an appropriate head sentence, in fixing a non-parole period and in determining whether to suspend the sentence of imprisonment, nevertheless the issues at each stage are different, and require a separate and distinct weighing and synthesis of those factors. At the same time, where the circumstances of the offending and of the offender have been essayed in the sentencing remarks, it will not generally be necessary to repeat these matters at each stage of the sentencing process. While the issues differ at each stage, there is often little different that can usefully be said at each stage. Having at some point in the sentencing remarks set out all relevant considerations, the conclusion at each stage (including in relation to home detention) often admits of little by way of analysis, let alone by way of detailed exposition of that analysis. While this Court needs to ensure that adequate regard has been had to the differing discretions at each stage of the sentencing exercise, it at the same time needs to be wary of mandating an approach that would require that sentencing remarks include a detailed or exhaustive explication of every step in the process. To do so would result in sentencing remarks becoming unnecessarily, and indeed undesirably and artificially, long and would risk the resort to formulaic repetition in an attempt to articulate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation. It is also significant when considering R v Hevko that the Court held that the sentencing judge in that case had failed in his sentencing remarks to identify a salient feature of the offending, namely that it may have been an isolated incident and the defendant’s first incursion into heroin trading. It was in this context that it was insufficient (and involved a failure to address the home detention discretion against a critical factual feature of the offence) for the sentencing judge to rely upon a reference to the importance of deterrence in relation to “this category of offending generally” when declining to order home detention. There was no equivalent failure in this case to identify the relevant features of the offending. To the contrary, the sentencing judge did so in detail and with clarity. The Court in R v Hevko also criticised the sentencing judge’s remarks as failing to make it plain that his Honour had appreciated the differences between the issues of suspension and home detention. Indeed, the Court inferred from the similarities in the expression of the judge’s reasoning in respect of each that he had, in effect, applied the same test to both issues. While the remarks of the sentencing judge in this case in relation to the issues of suspension and home detention were brief, there is nothing in those remarks that suggests any confusion between, or elision of, the differing issues relevant to suspension and home 8 [2018] SASCFC 35. 9 Ibid [74]–[79]. -- 9 of 19 -- [2024] SASC 63 Kimber J 8 detention. Both options were the subject of different paragraphs and distinct (albeit succinct and similar) reasons. There is no basis to infer such confusion or elision. The discretion to order a sentence be served on home detention 36 Section 71 of the Sentencing Act relevantly provides: 71 – Home detention orders (1) Subject to this section, if— (a) a court has imposed a sentence of imprisonment on a defendant; and (b) the court considers that the sentence should not be suspended under Part 4 Division 2; and (c) the court considers that the defendant is a suitable person to serve the sentence on home detention, the court may order that the defendant serve the sentence on home detention (a home detention order). (2) The following provisions apply to a home detention order: (a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice; (b) a home detention order must not be made if the defendant is being sentenced— (i) as an adult to a period of imprisonment with a non-parole period of 2 years or more for a prescribed designated offence; or (ii) as an adult for a serious sexual offence unless— (A) the offence is a prescribed serious sexual offence that occurred in prescribed circumstances; or (B) if sub subparagraph (A) does not apply, the court is satisfied that special reasons exist for the making of a home detention order; or (iii) as an adult for a serious and organised crime offence or specified offence against police; or (iv) as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has sentenced the defendant to imprisonment (other than where the sentence is suspended), home detention or an intensive correction order for a designated offence; (c) a home detention order must not be made unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; -- 10 of 19 -- [2024] SASC 63 Kimber J 9 (d) a home detention order must not be made if the home detention is to be served cumulatively on another term of imprisonment (other than a term of imprisonment to be served subject to a home detention order), or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; (e) a home detention order should not be made unless the court is satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer. (3) The court must take the following matters into consideration when determining whether to make a home detention order: (a) the impact that the home detention order is likely to have on— (i) any victim of the offence for which the defendant is being sentenced; and (ii) any spouse or domestic partner of the defendant; and (iii) any person residing at the residence at which the prisoner would, if released, be required to reside; (b) the pre-sentence report (if any) ordered by the court; (c) any other matter the court thinks relevant. (4) The following provisions apply for the purposes of subsection (2)(b)(ii)(B): (a) the court cannot be satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B) unless the court is satisfied that— (i) the defendant’s advanced age or permanent infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general); and (ii) the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody; (b) the court must not have regard to any other matter in determining whether it is satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B). 37 The matters in sub-s (2) are in the nature of preconditions to a home detention order being made, preventing the Court from making a home detention order in identified circumstances. The matters in sub-s (3) are in the nature of matters that must be taken into account, but without necessarily being determinative of whether a home detention order should be made.10 38 Consideration of whether the discretion to order that a sentence be served on home detention involves a two-stage process. The first stage involves a narrower 10 R v Dell (2016) 126 SASR 571 [43]. -- 11 of 19 -- [2024] SASC 63 Kimber J 10 inquiry under s 71(1)(c) as to whether the defendant is a suitable person to serve the sentence on home detention. If so satisfied, the second stage involves consideration of the broader discretion encompassed in the words ‘the Court may order that the defendant serve the sentence on home detention’.11 At the second stage, the full range of ordinary sentencing considerations will be relevant. Those matters include, but are not limited to, the need for punishment and general deterrence.12 Discussion 39 The submission of the respondent that neither appellant had submitted that home detention was appropriate must be rejected. It can be accepted that submission was not developed in any substantial fashion by either appellant, and, for reasons to be given, that informs whether what the Magistrate said was sufficient. Nevertheless, the prosecution had submitted, with respect to both appellants, that a sentence on home detention was within the proper exercise of the discretion of the Magistrate. The submissions of both appellants must be considered in that context. Both appellants submitted that a sentence that did not involve time in custody was appropriate. In my view, those submissions encompassed orders for home detention, notwithstanding that was not the primary submission of either appellant. 40 On the hearing of the appeal, there was no dispute that each appellant was a suitable person to serve a sentence on home detention. The real issue is the second stage and whether what the Magistrate said was, in the circumstances of each respective appellant, sufficient. 41 With respect to the Magistrate, it would have been better if he had given more detailed reasons for why home detention was not appropriate given: the offending; the submission of the prosecution to the effect that it was within discretion; the submissions of each appellant; and the personal circumstances of each appellant. Nevertheless, given what occurred when submissions were made before the Magistrate, and once the respective sentencing remarks are read as a whole, I am not satisfied that more needed to be said. My reasons follow. 42 The adequacy of what the Magistrate said must be viewed considering two matters. Firstly, what the Magistrate said in the balance of the respective sentencing remarks. Secondly, the limited submissions of the appellants. 43 As to the first of the above matters, there is no doubt that the Magistrate was cognisant of the offending and the personal circumstances of each appellant. In the case of each appellant, those matters were set out in considerable detail. As I have said, it is not submitted that any relevant matter was misstated or overlooked. As to the second of the above matters, neither appellant assisted the Magistrate with respect to the address at which the appellant would reside, nor as to why the 11 Ibid 580-581 [45]–[48]. 12 Ibid 582 [55]. -- 12 of 19 -- [2024] SASC 63 Kimber J 11 ordering of a report to address the relevant matters in s 71 was appropriate. As I understand it, before the Magistrate, there was no request by either appellant that a report which would have addressed the relevant matters in sub-ss (2)(c), (e) and (3) of s 71 be ordered. I recognise that it was open to the Magistrate to be proactive, to seek the relevant address from the respective appellants and to order a report without the assistance to which I have referred. I do not discount that there might be matters in which a Magistrate might be obliged to be proactive in that respect nor that there may be matters in which a Magistrate will be obliged to give adequate reasons for not seeking a report which might address the relevant matters within s 71. 44 Nevertheless, in this case, the appellants were represented by a solicitor who made detailed submissions on other matters relevant to sentence. I have no doubt that solicitor was aware home detention could not be ordered in the absence of information which addressed the relevant matters set out in s 71. In the circumstances, I am not satisfied that, in this case, the Magistrate was obliged to be proactive in seeking assistance in order that information relevant to the matters in s 71 would be available to him. 45 Given that the Magistrate did not have any information about the matters in s 71(2) and (3) and given that, in this particular case, I am not satisfied that he was obliged to be more proactive than he was, I am satisfied that what the Magistrate said as to why home detention was inappropriate was sufficient. In my view, against the background of detailed remarks about the respective offending and the respective personal circumstances, it was sufficient for the Magistrate to state, as he did, that the nature of the offending and the need for punishment made home detention inappropriate. I am not satisfied the Magistrate failed to properly consider home detention in the case of either appellant. 46 Ground 1 must be dismissed. Grounds 2 and 3 47 These grounds can be dealt with together as both involve a complaint that the respective sentences were manifestly excessive. 48 The principles with respect to manifest excess are well known. A sentence is only manifestly excessive if the sentence is plainly unjust.13 To be manifestly excessive, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’.14 A sentence must not be interfered simply because an appellate Court would have given a lesser sentence.15 13 House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. 14 Kentwell v The Queen (2014) 252 CLR 601 [35]. 15 House v The King ((1936) 55 CLR 499, 505. See also Lowndes v The Queen (1999) 195 CLR 665, 671; R v Wilton (1981) 28 SASR 362, 363. -- 13 of 19 -- [2024] SASC 63 Kimber J 12 Approach to Commonwealth sentencing 49 As all offences were against Commonwealth law, sentencing was governed by the Crimes Act 1914 (Cth) (the Crimes Act). The Magistrate was obliged to impose a sentence or make an order of a severity which was appropriate in all the circumstances of the offence.16 The Magistrate was required to have regard to the matters in s 16A(2) of the Crimes Act known to the Court and any other matters relevant to the sentencing task.17 That requirement applies in equal measure in determining the minimum period of immediate imprisonment.18 Sentencing for fraud against the Commonwealth 50 In support of their respective positions about manifest excess, both the appellants and the respondent referred to sentences imposed in a substantial number of other cases. As is commonly the case, little, if anything, can be drawn from the specific sentences imposed in other cases as no two cases are ever the same. The differences include, among others: the number of offences; the period of the offending; the monetary amount; the relevant maximum penalty; whether there had been a guilty plea; whether offending ceased voluntarily; and whether there has been restitution. There are then the personal circumstances of each offender. In some cases, those circumstances are mitigatory. In other cases, they are not. 51 Further, in considering the sentences imposed in other cases, it must also be born in mind that the issue for both appellants is the order that a period be served. Both appellants accept that a sentence of imprisonment was appropriate, and no complaint is advanced about the respective periods of six months and 10 months. The submission of both appellants was that a proper balancing of all relevant sentencing considerations should have resulted in a recognizance release order being imposed with no period being served in custody or, in the alternative, a home detention sentence. Both appellants submit that a recognizance release order would be a significant penalty for both appellants and would have met the need for general and personal deterrence. 52 The consistency that is sought is not numerical consistency but in the application of applicable legal principle.19 53 In Kovacevic v Mills, the Court set out the sentencing principles applicable to cases of social security fraud:20 … [it is] the responsibility of the courts to protect the integrity of the social security system … [there is] the need for a firm approach to offences involving sustained and deliberate fraud. In particular, the Court must do what it can to deter such offending. 16 Crimes Act 1914 (Cth) s 16A(1). 17 Hili v The Queen (2010) 242 CLR 520, 528 [24]. 18 Ibid [40]–[41]. 19 The Queen v Pham (2015) 256 CLR 550, 559 [28] quoting Hili v The Queen (2010) 242 CLR 520, 535 [49]. 20 Kovacevic v Mills (2000) 76 SASR 404, 411 [37], [43]. -- 14 of 19 -- [2024] SASC 63 Kimber J 13 Offences of the type in question are common. The fact that such offending occurs over a longish period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. And it is true that sustained fraud against the social security system tends to undermine it, and because of its widespread and insidious nature, to impose substantial costs upon the community. … In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served. 54 Abuse of the social security system puts at risk the integrity of that system. Sentencing Courts have a responsibility to protect such schemes by imposing punishments which are likely to act as a deterrent.21 Almost 40 years ago, in Laxton v Justice,22 Olsson J described offending of this type as prevalent. There is no reason to consider that is not still the case. The other submissions of the appellants 55 Common to both appellants were submissions about the fact that they had pleaded guilty and the impact upon dependants, particularly S. The appellants submitted that the obligation to serve sentences immediately meant that S would be separated from both her parents for four weeks given the sentence imposed upon Mr Ladd, and from her mother for six weeks as a result of the sentence imposed upon Ms Noblet. It was submitted that separation would occur when S had health issues and the Magistrate had recognised that imprisonment of one, or both, of the appellants was likely to have ‘a significantly adverse effect upon her’.23 The appellants submitted that the Magistrate ‘failed to give sufficient weight’ to the impact upon dependants. 56 In addition, Ms Noblet also emphasised that she: was a young woman at the time of the offending; had grown up in a dysfunctional family; had been sexually abused by her step-father; had been diagnosed with a borderline personality disorder and a complex post-traumatic stress disorder; had sought assistance with her mental health for the first time in 2018; and had been hospitalised on more than one occasion, including an occasion when she had been experiencing suicidal ideation. 57 For his part, Mr Ladd also emphasised the absence of relevant past offending and his employment history. 21 R v Cameron and Simounds (1993) 171 LSJS 305, 307. 22 Laxton v Justice (1985) 38 SASR 376, 381. 23 Sentencing Remarks for Mr Aaron Ladd p 5; Sentencing Remarks for Ms Stephanie Noblet p 5. In one set of sentencing remarks the Magistrate said ‘significant adverse effect’ in the other, the Magistrate said ‘significantly adverse effect’. -- 15 of 19 -- [2024] SASC 63 Kimber J 14 The issue of dependants 58 The impact of imprisonment upon dependants must not be ignored in considering whether the respective sentences were manifestly excessive. Section 16A(2)(p) of the Crimes Act demands that the Court take into account ‘the probable effect any sentencing order would have on any of the person’s family or dependants.’ Consistent with that demand, it is necessary to have regard to the combined effect of the sentences imposed on the appellants, particularly the impact upon S and Ms Noblet’s youngest child. 59 An example of the approach that may be taken when two parents are sentenced to imprisonment at the same time is Walsh and Another v The Department of Social Security (Walsh). 24 60 In Walsh, the appellants were husband and wife both of whom had pleaded guilty for breaches of the SS Act. The wife pleaded guilty to three counts committed over a period of about four and a half months resulting in her receiving an overpayment of $4,668.63. The husband pleaded guilty to seven counts committed over about two and a half months resulting in an overpayment of $2,740.00. The Magistrate sentenced the wife to imprisonment for four months and the husband to imprisonment for three months. The appellants had no prior convictions. The appellants had three children aged from two to eight years of age, each of whom was asthmatic. The asthma suffered by each child had required hospitalisation and the medication taken by each child was administered by the mother. 61 Perry J held that if the sentences were viewed discreetly, each sentence was well within a proper exercise of the sentencing discretion. Nevertheless, Perry J identified that it was important to have regard to the combined effect of the two sentences upon the welfare of the three children. Perry J held that the Magistrate had either failed to have sufficient regard to that effect, or, on the basis of additional material that he received on the hearing of the appeal, ‘recognition of the need to have regard to the dependent children should result in intervention by way of appeal in a form appropriate to ensure that the welfare of the children is adequately protected’.25 Perry J allowed the appeal of the mother and gave her the benefit of conditional release. The appeal of the father was dismissed. 62 In so far as the appellants before me submit that the Magistrate failed to give sufficient weight to the impact upon dependants, that must be rejected. As the appellants conceded, a complaint about the weight given to a relevant sentencing consideration does not enliven the authority of the appeal Court to intervene.26 63 In this appeal, it is not suggested that the Magistrate overlooked the combined effect of both appellants being imprisoned. In the sentencing remarks for each 24 (1996) 67 SASR 143. 25 Ibid 147. 26 Evdochim v The King [2022] SASCA 140 [54]. -- 16 of 19 -- [2024] SASC 63 Kimber J 15 appellant, the Magistrate referred to all relevant children; the new partners; the relevant care arrangements; and that S had been diagnosed with both ADHD and ASD. In the case of both appellants, the Magistrate recognised that ‘the imprisonment of one or both of [the appellants] is likely to have a significant[ly] adverse effect upon [S]’.27 64 Nevertheless, the probable effect upon all dependants, but particularly S and Ms Noblet’s youngest child, remains important in evaluating whether each respective sentence was manifestly excessive. It is necessary to give that probable effect some further context. 65 Ms Noblet lives with her new partner, Mr August, and his child, AR. Ms Noblet and Mr August also have a child together who is now about 10 months old, N. S also lives with Ms Noblet and Mr August but in alternate weeks. Ms Noblet has another child, A, who is about 12 years old, and lives at both the home of Ms Noblet and Mr Ladd in what the Magistrate described as in terms consistent with an informal arrangement. Mr Ladd is not A’s father, but A has not seen her father since she was about three years old and it appears that both appellants believe it important that the bond between A on the one hand, and both S and Mr Ladd on the other is maintained. In addition to the care of S in alternate weeks and the informal arrangement with respect to A, Mr Ladd’s new partner, with whom Mr Ladd lives, has two children, aged about five and 10 years. 66 The submissions on appeal about effect on dependants were almost solely focussed upon S, given her ASD and ADHD. Nevertheless, in the case of both appellants, it can be assumed that both appellants being imprisoned at the same time will be distressing to A. In the case of Ms Noblet, it can be assumed that the imprisonment will be distressing to N, and that the bond between a young child and their mother is a significantly important one. In the case of Mr Ladd, I am prepared to assume that his imprisonment might be distressing to the two children of his partner, but not to the same extent were he their father. 67 In so far as S is concerned, in the case of both appellants, the Magistrate had before him more than one report, including: opinions about that child’s difficulties with social skills; that she finds unexpected change challenging and anxiety provoking; and that she benefits from structured support. It is not necessary to detail the content of those reports further, given that the respondent did not submit that I might doubt the conclusion of the Magistrate that imprisonment of one or both appellants is likely to have a significantly adverse effect upon S. 68 In the case of both appellants, while the probable effects upon dependants may be characterised in the way set out above, at least two further matters must be recognised. Firstly, the respective periods of separation are relatively brief. In the case of Ms Noblet and the children in her care, a period of six weeks. In the case of Mr Ladd and the children in his care, a period of four weeks. Secondly, both 27 Sentencing Remarks for Mr Aaron Ladd p 5; Sentencing Remarks for Ms Stefanie Noblet p 5. -- 17 of 19 -- [2024] SASC 63 Kimber J 16 Ms Noblet and Mr Ladd have new partners. There is no suggestion that any child would live with a person with whom they are not familiar or at a home which is foreign. Consideration – Ms Noblet 69 I turn to whether the sentences imposed were manifestly excessive, bearing in mind all the matters emphasised by each appellant, including the probable effect on all relevant dependants. 70 In the case of Ms Noblet, while it was not submitted that her personal circumstances mitigated the offences and, as the Magistrate observed, her absence of prior offending must be viewed in the context of the period over which she offended, her personal circumstances remain relevant and excite considerable sympathy. It can be noted that some of her offending occurred in 2018, around the same time as she first sought assistance with her mental health. At the time of the offending, Ms Noblet was a relatively young woman, aged between 21 and 23 years. While Ms Noblet did not cease the offending voluntarily, it ended almost six years ago and there is no suggestion that she has returned to the conduct of the past. Ms Noblet has the care of three children, one of whom, it is not disputed, will be adversely impacted by her imprisonment in a significant way; another is only about 10 months old. 71 In all the circumstances, the order that Ms Noblet serve a period of six weeks has resulted in a sentence which may be described as a heavy one. This is particularly so given her personal circumstances and the period since the offences. I regard the question of whether the sentence is manifestly excessive finely balanced. 72 The issue is not what sentence I might have imposed. It is whether the sentence imposed is outside the permissible outcomes. Notwithstanding that it is a heavy sentence and the personal circumstances of Ms Noblet, I am not satisfied that it is outside the permissible outcomes for Ms Noblet and the offending. Ms Noblet fell to be sentenced for three offences committed over more than 18 months and involving overpayment of $16,363.68. The dishonesty was considered; offending of this type is prevalent; and deterrence has particular importance. 73 I dismiss Ms Noblet’s appeal. Consideration – Mr Ladd 74 At the time of his offence, Mr Ladd was between 39 and 40 years of age. The letters provided on behalf of Mr Ladd suggest that, outside of this offending, he is well regarded. As in the case of Ms Noblet, it is to be assumed that any imprisonment will have a significantly adverse effect upon S. Mr Ladd’s commitment to Ms Noblet’s child, A, reflects well on him, and it can be assumed that she will be distressed by separation from him. Nevertheless, in the case of A, -- 18 of 19 -- [2024] SASC 63 Kimber J 17 the period of four weeks is within the limits of separation commonly endured by children without a significantly adverse effect. The offending came to an end almost five years ago. Since that time, Mr Ladd has obtained employment with more than one employer; has performed well; and has been well regarded in the workplace. 75 At the same time, the offence committed by Mr Ladd involved deception over a period of almost two years. It involved ongoing deliberate omissions and false statements about the nature of the relationship with Ms Noblet, the only obvious purpose of which was to secure a greater payment than that to which Mr Ladd was entitled. The overpayment was $15,547.22, and the offending did not cease voluntarily. While the impact upon S is to be assumed to be as determined by the Magistrate, as I have already observed, it appears that child will be cared for by a person with whom she is familiar and at a home(s) not foreign to her. 76 The personal circumstances of Mr Ladd are not nearly as mitigatory as those of Ms Noblet. Mr Ladd was much older when he offended and there is no suggestion that he was suffering from mental health issues during any part of the period of his offence. While Mr Ladd is involved in the care of children other than S, he is not the only carer of those children. Further, unlike Ms Noblet, he does not have an infant child in his care. 77 Given the conduct the subject of the offending occurred over about two years; the amount of overpayment; and the importance of general deterrence, I am unable to find that the sentence imposed upon Mr Ladd was not within the proper exercise of the discretion. I dismiss the appeal of Mr Ladd. Orders 1. The appeal of Ms Noblet is dismissed. 2. The appeal of Mr Ladd is dismissed. -- 19 of 19 --