Barnett v Evans [2004] QDC 266

DISTRICT COURT OF QUEENSLAND CITATION: Barnett v. Evans [2004] QDC 266 PARTIES: CAROLYN JOY BARNETT (Appellant) v. FIONA JANE EVANS (Respondent) FILE NO/S: 10/2003 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Ipswich DELIVERED ON: 16/8/04 DELIVERED AT: Ipswich HEARING DATE: 20/2/04 JUDGE: Richards DCJ ORDER: Appeal allowed. Sentence set aside to the extent that the appellant is ordered to be released forthwith. CATCHWORDS: Social security fraud – general deterrence – personal mitigation COUNSEL: D. Murray for the appellant S. Shearer for the respondent SOLICITORS: Brad Munt for the appellant Cth Director of prosecutions for the respondent. [1] The applicant pleaded guilty to one dealing with a contravention of s.215 of the Social Security Administration Act 1999 and one count dealing with a contravention of s.135(2)(i) of the Criminal Code (Commonwealth). They both involved making similar claims under the Social Security scheme. [2] The first charge related to a period from 9 May 2000 to 8 October 2001. The second charge related to a period from 9 October 2001 to 22 April 2002. The applicant pleaded guilty to the offences in the Ipswich Magistrates Court on 10 July 2003. -- 1 of 5 -- 2 She was sentenced to imprisonment for one year to be released after serving two months upon entering into recognisance of $3000 to be of good behaviour for a period of 3 years. In relation to Count 2 she was sentenced to 6 months imprisonment with a release date set at the end of 2 months . [3] The crown case was that the applicant was in receipt of a Newstart Allowance for 51 fortnights during the period of the charges. She had no entitlement to benefits for 47 of the 51 fortnights. She was entitled to partial benefits in the other four fortnights because she was living in a marriage-like relationship with another person. She commenced receiving Newstart Allowance on 9 May 2000 and the benefits were cancelled on 22 April 2002. She did not disclose to Centrelink that she was residing in a marriage-like relationship with a male partner, nor did she disclose any of the income earned by her partner during that period. She received a total overpayment of these benefits in the amount of $17,291.10 and at the date of sentence the amount outstanding was $16,127.23. [4] The applicant was a 28 year old woman with no criminal history. At the time of sentence she had a very young child who was 16 months of age. She had fully co- operated with investigating authorities and made full and frank disclosure during the records of interview. She was genuinely remorseful for the offences. [5] It was submitted on behalf of the appellant that the Magistrate did not give sufficient weight to the personal circumstances of the appellant and that he placed too much weight on the aspect of general deterrence. It was said that given the age and circumstances of the appellant, a non-custodial term should have been imposed. -- 2 of 5 -- 3 [6] Unfortunately, in relation to this matter, the tape recording equipment failed in the Magistrates Court and there is no transcript of the proceedings. However the prosecutor, Mr Shearer, has sworn an affidavit in relation to the proceedings and the appeal has proceeded on the basis of that affidavit. [7] The applicant gave a record of interview to Centrelink on 28 February 2003 wherein she admitted that she had been in a de facto relationship with her partner during this period of time, however she also said that she did not understand what a marriage- like relationship was. She said at Answer 43 of the interview: “I really don’t know, like a marriage, like I always thought the marriage, like you know, like you – um, like if you are married and if you are not working and your husband pays for everything and um, yes, he sort of supports you.” [8] They had no joint property and any loans that the applicant’s partner had he paid for himself. His property was in his name. Her partner had credit cards but she did not have access to them. They did not have joint bank accounts. He did not have access to her Centrelink payments through a bank account. He now pays for the food bills, the electricity and phone bills. When she was getting Newstart Allowance, however, she was giving him $150 per fortnight for bills and buying her own food. [9] Once they had their young child the appellant said that she felt that their relationship had changed and she regarded the relationship as more serious. She had never described herself as being in a de facto relationship with the respondent. She was not a beneficiary under his life insurance or superannuation. [10] It was submitted on behalf of the respondent that her explanation for them not being in a marriage-like relationship is implausible, but it seems to me in circumstances -- 3 of 5 -- 4 where it is said that the appellant was fairly slow, that she did not see herself as in a marriage-like situation because they did not act as a married couple would by sharing assets. [11] She attempted to explain the situation further at Question 235 of the interview: “Because – like – I - like – why I thought I was single then is cause I’m not – I wasn’t in a stable relationship then. Like I said, I’d get thrown out all the time so if I don’t have money the relationship has only become stable since my baby’s been born.” [12] It is obvious from her description of the relationship that it was a de facto relationship, however the Magistrate, in my view, in the absence of any challenge to her interview, should have accepted that she did not realise the fully the significance of the relationship to her benefit or at the very least that her financial position was so precarious and the relationship so unstable that the relationship was of uncertain duration. Whilst ignorance of the law is no excuse, it does go to mitigation indicating that the fraud was not as premeditated as is the case in many Social Security matters. [13] Whilst general deterrence is always important in cases of Social Security fraud, one cannot loose sight of the fact of the recipient’s personal circumstances. This particular appellant was not a sophisticated person with a young child and no previous convictions. She had cooperated with police and had shown genuine remorse. The importance of general deterrence in my view was allowed to overpower these factors. [14] In those circumstances it seems to me that the Magistrate should have exercised his discretion not to impose a term of actual imprisonment and the appeal is allowed to the extent that the actual terms of imprisonment were imposed. -- 4 of 5 -- 5 [15] The order of the court is that the sentences are set aside and instead in relation to Count 1, the appellant is convicted and sentenced to a term of imprisonment for a period of 12 months. I order the release of the appellant under para. 21(b) of the Crimes Act 1990 forthwith upon the defendant giving security by recognisance in the sum of $3,000 conditioned that the appellant shall be of good behaviour for a period of three years from this date. [16] In relation to Count 2, the appellant is convicted and sentenced to a term of imprisonment for a period of six months. I order the release of the appellant under para. 21(b) of the Crimes Act 1990 forthwith upon the appellant giving security by recognisance in the sum of $3,000 conditioned that the appellant shall be of good behaviour for a period of three years from this date. -- 5 of 5 --