Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202

DISTRICT COURT OF QUEENSLAND CITATION: Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202 PARTIES: GAYLE BRONSON (appellant) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: 19/13 DIVISION: Appeal PROCEEDING: Sentence appeal ORIGINATING COURT: Beenleigh DELIVERED ON: 6 September 2013 DELIVERED AT: Beenleigh HEARING DATE: 3 September 2013 JUDGE: Dearden DCJ ORDER: 1. Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL – SENTENCING – revenue offence against Commonwealth - factors to be considered in exercising the discretion to dismiss a charge without proceeding to conviction - Crimes Act 1914 (Cth), s16A and s19B. LEGISLATION: Criminal Code Act 1995 (Cth) s.135.2 Crimes Act 1914 (Cth) ss.19B, 19B(1), 19B(1)(b), 19B(1)(b)(iii), s.20AB Justices Act 1886 (Qld) s.222 CASES: Commissioner of Taxation v Baffsky (2001) 192 ALR 92, 96 Stevenson v Yasso [2006] 2 Qd R 150, 162 Tierney v Commissioner of Police [2011] QCA 327 COUNSEL: J Ide (solicitor) for the appellant -- 1 of 10 -- 2 J Voight for the respondent SOLICITORS: Ide Lawyers (pro bono) for the appellant Commonwealth Director of Public Prosecutions for the respondent Introduction [1] The appellant, Gayle Bronson, appeals from a decision of the learned magistrate at Beenleigh on 17 January 2013, imposing a sentence of 100 hours community service, with convictions recorded, in respect of the appellant‟s plea of guilty to seven charges of obtaining a benefit to which she was not entitled pursuant to Criminal Code (Cth) s.135.2. Appeal grounds [2] The appellant appeals on the following grounds: 1. The sentence imposed was manifestly excessive; and 2. The magistrate erred in the exercise of his discretion in recording a conviction (sic). Background [3] The appellant was charged by complaint and summons with seven charges of obtaining a financial advantage from the Commonwealth for herself, knowing or believing she was not eligible to receive that financial advantage (Newstart Allowance) on various dates between 1 February 2007 and 9 April 2009. After some delays in the Commonwealth Director of Public Prosecutions effecting service, the appellant first appeared on 4 May 2012 and the matter was listed -- 2 of 10 -- 3 (eventually) for trial on 17 January 2013. On 17 January, 2013, the appellant indicated that she would precede by way of a plea of guilty. The learned magistrate sentenced the appellant (pursuant to Crimes Act 1914 (Cth) s.20AB) to perform 100 hours of unpaid community service within a period of 12 months, to pay reparation in the sum of $9,864.901, and ordered that convictions be recorded. Circumstances of the offences [4] The circumstances of the appellant‟s offences are neatly summarised in the outline of submissions filed on behalf of the respondent2: “The offences arise out of the appellant‟s failure to accurately disclose her income from employment while in receipt of social security benefits, namely payments of Newstart Allowance, from Centrelink. The offences were committed over a period, totalling approximately 20 months in duration, and covering a total of 43 fortnightly payment periods. The appellant was required to disclose her income on a fortnightly basis. In 13 fortnights, she declared nil income from employment when she had, in fact, been in paid employment; in the remaining 30 fortnights she significantly under-declared her income from employment. Her gross income from employment during the charged periods was $33,006.25, which averaged $767.59 per fortnight. The appellant declared $9,542.30 of this income to Centrelink, which equates to approximately 29% of the amount she earned. Due to the appellant‟s failure to accurately disclose her income from employment, she was overpaid Newstart Allowance in the amount of $10,637.03. At the time of her sentence the appellant had repaid $772.13.” [5] The learned magistrate made the following comments during the course of his sentencing remarks: “The prosecution said this is a case of intentional misrepresentations and a plea of guilty is entered on that basis, but with the rider that 1 Crimes Act s.21B. 2 Outline of submissions on behalf of the respondent - p.2 para 8. -- 3 of 10 -- 4 there was some confusion which operated on the mind of the defendant which then does not put it in the category of being a calculated or intentional misrepresentation, but rather a reckless but intentional misrepresentation. It seems to me that that submission must be significantly tempered by the fact that during this period the defendant maintained employment that involved, to some extent, the monitoring of the financial management of other institutions by way of carrying out book keeping duties involving their finances. In those circumstances, the reckless disregard that she had for her own financial circumstances results in a degree of fairly significant culpability. She has pleaded guilty this morning on a day when the matters were set for hearing and the Commonwealth has been put to significant effort and expense in preparing for trial and arranging for witnesses to attend and be ready for trial today. The Commonwealth were advised last night of the probability of a plea of guilty today at the earliest opportunity but, nevertheless, that wasn‟t finalised until this morning. It‟s certainly a factor which depreciates, in a significant way, the discount that might otherwise attach to a plea of guilty.”3 [6] The learned magistrate went on to note that the appellant‟s plea was an important one, but without the “ordinary elements of significant remorse”. [7] The learned magistrate noted that the appellant was “56 years of age, [had] no previous convictions, [was] single and … by all accounts otherwise displayed a good character and [had] been a good member of the community… [with] increased responsibilities for some of her grandchildren because of a difficulty that… afflicted her daughter.”4 The learned magistrate noted that current and former employers described her as having “a good character”.5 3 Decision pp 1-3 – 1-4. 4 Decision 1-4. 5 Decision 1-4. -- 4 of 10 -- 5 [8] The learned magistrate noted further that “the amount of money constituting the total loss [was] significant”6; “that social security frauds are often easy to commit, not always easy to detect [and] that the degree of trust that exists in the community and the degree of reliance that exists in the community in respect of legitimate claims for social security is an important factor in the sentencing process”7; and further that “unless a significant penalty is imposed it might necessarily not have [the] reasonable effect of deterring others from succumbing to the temptation to apply for and receive more than that for which one is ordinarily entitled.”8 [9] The learned magistrate noted that there didn‟t appear to be any significant financial pressures on the appellant at the relevant time, although there may have been difficulties because of the appellant‟s daughter, but, that there was no “significant subterfuge by way of false identities or bank accounts or the like… rather a very simple process of under-declaring her income.”9 [10] The learned magistrate concluded that in those circumstances a penalty that went “beyond the imposition of a bond” was called for and it was appropriate to order that the appellant perform 100 hours community service.10 [11] The learned magistrate then addressed the issue of recording a conviction (on which submissions had been made during the sentencing proceedings) in these terms: “There are many factors that suggest that the non recording of a conviction would have advantages results (sic) for the defendant but on balance it seems to me that a conviction in this case should be recorded. This is certainly not a case where the circumstances are 6 Decision 1-4. 7 Decision 1-4 – 1-5. 8 Decision 1-5. 9 Decision 1-5. 10 Decision 1-6. -- 5 of 10 -- 6 trivial. There do not appear to me to be any significantly extenuating circumstances. It does not (sic) seem to me that more than a nominal penalty should be imposed in the circumstances. One factor that has influenced my mind is that the way in which these offences have occurred involved the misrecording of financial information about which a mitigating circumstance has been raised that the information provided arose as result of some confusion or complexity of the information required. That seems to be significantly counterbalanced by the fact that throughout this period of time the defendant has acted as a bookkeeper managing some of the documents relating to the financial affairs of other institutions. And it is work that she continues to perform and is work that may well be affected by the recording of a conviction. She also works in work that requires security licenses. Both her capacity to work as a bookkeeper or in a security related industry may be affected by the recording of a conviction. That is a serious consequence and I am aware of that but it does seem to me that given the direct nature of this offence, namely that it is an offence essentially involving fraud that it may well be in the interest of the financial industry that she does not continue working as a bookkeeper managing the affairs of others. So, it does seem to me, although the impact of the loss may well be and I expect probably will be significant, that it is such a case that a conviction needs to be recorded.”11 The law – District Court appeals [12] As Margaret Wilson AJA stated in Tierney v Commissioner of Police [2011] QCA 32712:- “an appeal from a Magistrates Court to the District Court pursuant to s.222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involved a review of the record of proceedings below, subject to the District Court‟s power to admit new evidence. To succeed, an appellant needs to show some legal, factual, or discretionary error.” (citations deleted). In a similar vein, M McMurdo P in Stevenson v Yasso [2006] 2 Qd R 150, 162 (paragraph 36), after noting that Justices Act s.222 appeals proceed by way of rehearing, held that it was necessary for a judge of the District Court to make their 11 Decision pp 1-6 – 1-7. 12 Para 26. -- 6 of 10 -- 7 “own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate‟s view.” (citations deleted). Discussion [13] The submissions on behalf of the appellant make it clear that the only aspect of the sentence which the appellant contends was “manifestly excessive” was the learned magistrate‟s decision not to make an order pursuant to s 19B of the Crimes Act (Cth) and (consequently) not record convictions. [14] Crimes Act s.19B(1) provides: Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied; or (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned -- 7 of 10 -- 8 (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; and (iii) that he or she will, during a period, not exceeding 2 years, that is order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.” [15] In Commissioner of Taxation v Baffsky (2001) 192 ALR 92, Spigelman CJ held that “section 19B(1)(b) itself consists of two stages. First is the identification of a factor or factors of the character specified in sub paras (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it „is inexpedient to inflict any punishment‟ or to reach the other conclusions for which the paragraph provides.”13 [16] As the appellant submits (and the learned magistrate accepted), the appellant was a woman of mature age, without criminal history, of otherwise good character who had entered a plea of guilty (albeit late in the proceedings) and would in all 13 P.96 para 10. -- 8 of 10 -- 9 likelihood suffer in her employment, both in security work and as a licensed tax agent, as a result of convictions being recorded for social security offences. [17] It was then necessary to consider whether the offence was “of a trivial nature”14 or “the extent (if any) to which the offence was committed under extenuating circumstance”.15 [18] The total loss to the Commonwealth was $10,637.03, of which $772.13 had been repaid as at the date of sentence16. The sentencing magistrate noted that “it is trite to say that the amount of money constituting the total loss is significant”.17 The magistrate identified that the offences occurred over 43 fortnights, during 13 of which the appellant was not entitled to any benefit, and during 30, the appellant was entitled to some of the benefit that was actually received.18 [19] It is clear, then, that the learned magistrate was fully apprised of the seriousness of the offences before the court and was (unsurprisingly) not persuaded that they were “of a trivial nature”.19 I see no basis to question the learned magistrate‟s conclusion on that issue. [20] The learned magistrate then adverted to the issue of the “confusion which operated on the mind that the defendant” at the time of the misrepresentations to Centrelink, but noted that that should be tempered by the fact that the appellant, at the relevant time, was carrying out bookkeeping duties for the financial management of other institutions. In those circumstances, he considered that “the reckless disregard that 14 Crimes Act s.19B(1)(b)(ii). 15 Crimes Act s.19B(1)(b)(iii). 16 Decision 1-2. 17 Decision 1-4. 18 Decision 1-2. -- 9 of 10 -- 10 [the appellant] had for her own financial circumstances [resulted] in a degree of fairly significant culpability.”20 Although not specifically articulated in those terms, it is clear that the learned magistrate concluded, therefore, that the offences were not “committed under extenuating circumstances”21. Conclusion [21] The learned magistrate‟s reasons for his decision not to proceed by way of a Crimes Act s.19B(1) recognizance, and not record convictions, indicates that he was fully apprised of all of the appellant‟s circumstances, and concluded that although she was otherwise of good character, the offences were neither “trivial” nor did they exhibit any “extenuating circumstances”. In reaching those conclusions, the learned magistrate has not, in my view, fallen into legal, factual or discretionary error. [22] It follows that the appeal must fail. Order [23] Appeal dismissed. 19 Crimes Act s.19B(1)(b)(ii). 20 Decision 1-3. 21 Crimes Act s.19B(1)(b)(iii). -- 10 of 10 --