Barclay v Olive [2009] QDC 434

1-1 [2009] QDC 434 DISTRICT COURT APPELLATE JURISDICTION JUDGE KOPPENOL Appeal No 2979 of 2008 ELIZABETH BARCLAY Respondent(Plaintiff) and KATRINA MAREE OLIVE Appellant(Defendant) BRISBANE ..DATE 23/03/2009 JUDGMENT -- 1 of 5 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal from a sentence imposed by a Magistrate on 13 October 2008. On that occasion the appellant pleaded guilty to one count of obtaining financial advantage from the Commonwealth, namely, social security payments knowing or believing she was not entitled to receive that financial advantage. The amount involved was $8,620.05 by way of over payment for New Start Allowance to which the appellant was not entitled. The appellant pleaded guilty. The mitigating factors which were urged upon the Magistrate included the plea that the appellant could neither read nor write, that she had an alcohol problem and that she had a young child who was being cared for by her grandmother. The appellant was 38 years of age. She had a previous criminal conviction for a similar offence of welfare fraud. It was committed between April 2002 and March 2003 and involved an over payment of $6,097. When that matter was brought before the Court the appellant pleaded guilty and was released on a recognisance. That was in 2004. The offences which caused the appellant to go before the Magistrates Court in Warwick occurred between September 2006 and September 2007. There was therefore a period of just over two years between her conviction for the first offence and her commencing to offend on the second occasion. At the hearing the Commonwealth prosecutor submitted that a -- 2 of 5 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 head sentence of six months' imprisonment would be appropriate with perhaps release after one third. Such a submission, it seems to me, is consistent with a number of authorities where this amount of welfare fraud was involved and where the offender had pleaded guilty at an appropriately early stage. The reduction in the period of actual custody is in recognition of the offender's acceptance by the entry of the plea of her criminal behaviour. The defence counsel submitted to the learned Magistrate that a period of actual custody would be appropriate, but that it would also be appropriate that that period be wholly suspended. The learned Magistrate sentenced the appellant to six months' imprisonment. No period of that head sentence was reduced such as would permit the appellant to have been released prior to that six months stage. Having heard full argument today by Ms Gibson for the appellant and Ms Mayall for the respondent Commonwealth Director of Public Prosecutions, I'm satisfied that the Magistrate erred in not giving reasons under section 19AC(5) of the Crimes Act 1914 (Commonwealth) for not permitting the appellant to be released under a recognisance release order at perhaps the two months stage. I was informed that the appellant had served a period of two months and 10 days in custody and was released on bail pending appeal on the 23rd of December 2008. The question then is whether the head sentence of six months -- 3 of 5 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 with no early release could be viewed as manifestly excessive. The Commonwealth prosecutor, Ms Mayall, relied heavily upon the decision of his Honour Judge Howell in Fraser v Arthur, a decision handed down on the 17th of December 2004. Submissions were made about that case. I think that there are a number of distinguishing features which result in that decision being able to be viewed as different factually. First in the Fraser case the offending was over a period of two and a-half years, rather than the 12 months that is involved in the present case. In addition the appellant in Fraser resumed his offending with respect to welfare fraud within one month of being ordered to serve a good behaviour bond. In the present case the period was between 17 months and two years, I was told. My attention was drawn to some comparable decisions in the Magistrates Court, and I've considered the summaries provided of each of those cases. They are Wilkinson on the 4th of March 2005, Torey on the 7th of March 2006 and Spicer on the 15th of January 2008. Those cases which involved broadly similar amounts of money, and offenders whose ages range from 29 to 52, are broadly comparative. In each case head sentences of six months were imposed, some cumulative and some concurrently, and in one of the cases, Torey, there was an immediate release on a recognisance. Those cases demonstrate the breadth of an appropriate sentencing discretion having regard to the personal circumstances of the case and particularly that of the offender concerned. -- 4 of 5 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 In the present case the maximum penalty that the Crimes Act imposes for offences of this nature is 12 months' imprisonment. For an offender of the nature of this appellant to be ordered to serve half of the maximum, having regard to the mitigating factors involved, in my opinion, would be categorised as manifestly excessive. I am of the opinion that the submissions made at first instance by the learned Commonwealth prosecutor that a figure of six months' imprisonment with release after one third was an appropriate submission and one which, with respect, should have been acted upon by the learned Magistrate. In saying that I am not of course asserting that a Judge or a Magistrate would be bound by a submission made by a submitting Counsel; that is certainly not correct. But in the circumstances of this case I think a head sentence of six months with an appropriate early release in recognition of the mitigating factors, including, particularly, the plea of guilty, was the appropriate sentence. In the circumstances the orders that I will make are that the appeal is allowed and I will vary the sentence imposed by the learned Magistrate by including an order that the defendant be released after serving two months and 10 days, namely, the period that the appellant/defendant has already served, upon her entering into a recognisance in the sum of $3,000 to be of good behaviour for a period of three years pursuant to the Crimes Act 1914. I make no order as to costs. -- 5 of 5 --