Miodrog Gajic v Daniel Howard [1986] ACTSC 69 (18 July 1986)

SUPREME COURT OF THE ACT

MIODROG GAJIC v. DANIEL HOWARD
S.C. Nos. 118-245 and 1103-1223 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - Imposition on Commonwealth - Social Security fraud - Series of 126 offences over more than 5 years - Appeal against severity of cumulative sentences - Principles to be applied in sentencing.

Crimes Act (Cwth) 1914 - Ss.12, 16, 19 and 29B

Laxton v. Justice (1985) 16 ACrimR 46.

HEARING

CANBERRA
18:7:1986

ORDER

The appeal against the sentence imposed in respect of the charge laid in information numbered 86 716 under s.556C(1)(a) of the Crimes Act 1900 be dismissed, the sentence of 12 months to be served concurrently with all others to be imposed this day upon the appellant.

The appeals be otherwise allowed and the sentences imposed by the learned Magistrate be set aside except to the extent that the sentences imposed coincide with those imposed by him.

In respect of each of the charges referred to in the informations numbered 85 6341, 85 6342 and 85 7358 to 85 7396 inclusive the appellant be sentenced to imprisonment for three months, the sentences to be served concurrently with each other and with those about to be imposed and to commence on 29 January 1986.

In respect of each of the charges referred to in the informations numbered 85 7317 to 85 7357 inclusive, the appellant be sentenced to imprisonment for six months, the sentences to be served concurrently with each other and with those about to be imposed and with those already imposed by me this day and to commence on 29 January 1986.

In respect of each of the charges referred to in the informations numbered 85 6343 and 85 7277 to 85 7316 inclusive, the appellant be sentenced to imprisonment for nine months, the sentences to be served concurrently with each other and with those about to be imposed and with those already imposed by me this day and to commence on 29 January 1986.

In respect of each of the charges referred to in the informations numbered 85 7274, 85 7275 and 85 7276, the appellant be sentenced to imprisonment for twelve months, the sentences to be served concurrently with those already imposed by me this day but cumulatively with each other so that the first sentence, that in respect of the information numbered 85 7274, shall be served first, commencing on 29 January 1986, with the sentences imposed in respect of the informations numbered 85 7275 and 85 7276 being served respectively successively thereafter.

A non-parole period be fixed to expire on 28 April 1987.

DECISION

These are appeals against sentences imposed on 29 January 1986 by the Court of Petty Sessions (as it then was) and by the Magistrates Court this day. All the sentences date from 29 January 1986.

2. Although pleas of guilty in respect of the sentences imposed today were entered on 29 January 1986, difficulties arose on that day in the sentencing process. These difficulties have now been resolved by the learned Magistrate with the concurrence of each of counsel for the appellant and the respondent. I am satisfied that all the appeals may now be properly dealt with.

3. On the application of counsel for the appellant and with the consent of counsel for the respondent I ordered that the appeals might proceed forthwith, dispensing with compliance with rules as to time and procedures.

4. The appellant pleaded guilty to a total of 127 charges. All but one of the charges were laid under s.29B of the Crimes Act 1914 (Cwth) (the Crimes Act). The odd one was laid under s.556C(1) (a) of the Crimes Act 1900 of the State of New South Wales in its application to the Australian Capital Territory (the Crimes Act 1900). It alleged that the appellant had been convicted of a charge of false pretences on 28 September 1984 in the Canberra Court of Petty Sessions and thereupon, when the learned Magistrate elected not to pass sentence upon him, entered into a recognizance to be of good behaviour for a period of three years which recognizance he breached by committing, on 29 March 1985, one of the offences under s.29B of the Crimes Act in respect of which he had been duly convicted.

5. The first of the 126 offences against s.29B was committed between 21 February and 8 March 1980. It is convenient to set out the charge as laid as an example of the charges. Mutatis mutandis, there were still differences in some of them but the nature of the offence in each case was in substance the same. Charge No. 85 7396 read:-

"That (Miodrog Gajic) in the Australian

Capital Territory between the 21st day of
February and the 8th day of March in the year
1980 did impose upon the Commonwealth, namely
the Department of Social Security, by means
of an untrue representation contained in a
Department of Social Security 'Application
for Continuation of Unemployment Benefit'
form submitted by the said Miodrog GAJIC, to
wit, that in answer to question 3a on the
said form, 'Did you or your wife or husband
work on a FULL TIME basis during the period
mentioned above? Answer YES or NO', the said
Miodrog GAJIC did answer 'NO', which said
representation he knew to be untrue with a
view to obtaining money."

6. Section 29B of the Crimes Act reads:-

"Any person who imposes or endeavours to
impose upon the Commonwealth or any public
authority under the Commonwealth by any
untrue representation, made in any manner
whatsoever, with a view to obtain money or
any other benefit or advantage, shall be
guilty of an offence.

Penalty: Imprisonment for 2 years."

Section 12 of the Crimes Act provides that offences against the Act other than offences expressed to be indictable offences shall be punishable either on indictment or on summary conviction. It also provides that a court of summary jurisdiction before which proceedings for an offence against the Act are brought may determine the proceedings but, if it does, it may not impose a longer period of imprisonment than one year in respect of any one offence against the Act. It follows that the maximum penalty which the learned Magistrate could impose was imprisonment for a period of one year in respect of any one of the 126 offences. However, s.19 of the Crimes Act provides for the imposition of cumulative sentences. Section 19(2) reads:-

"Where -

(a) a person is convicted of 2 or more
offences against the law of the
Commonwealth before the same court at
the same sitting; and

(b) the person is sentenced to -

(i) 2 or more terms of imprisonment for
the offences;

(ii) a term or terms of imprisonment for
one or more of the offences and a
term or terms of imprisonment in
default of the payment of a fine or
fines imposed for the other offence
or offences; or

(iii 2 or more terms of imprisonment in
default of the payment of fines
imposed for the offences,

the court may, by order, direct that all or
some of the sentences shall be cumulative."

Section 19(3) reads:-

"Where 2 or more sentences are, under
sub-section (2), directed to be cumulative,
they shall take effect one after the other in
such order as the court directs or, in
default of such a direction, in accordance
with the order in which the convictions are
recorded."

7. The 126 offences were committed during two periods, the first commencing on a date between 21 February and 8 March 1980 and ending on 31 August 1984, the second commencing on 28 March 1985 and ending on 21 June of that year.

8. The informations in respect of the 126 charges were numbered 85 6341 to 85 6343 inclusive (the first group) and 85 7274 to 84 7396 inclusive (the second group). The first group related to offences said to have occurred on 14 November 1980, 28 November 1980, and 28 March 1985 respectively while the second group referred to offences committed between a date which fell between 7 March and 22 March 1980 and 21 June 1985, making allowance for the gap between 31 August 1984 and 28 March 1985 referred to above. Oddly enough, the first by number of the offences alleged in the second group occurred last while the last occurred first and this reverse sequence was preserved throughout the second group.

9. In respect of each of the charges referred to in the informations numbered 85 6342 and 85 6343, and 85 7275 to 85 7278 inclusive the learned Magistrate imposed a sentence of three months imprisonment with the sentences to be served concurrently with all the other sentences.

10. In respect of each of the charges the subject of the informations numbered 85 7279 to 85 7284 inclusive and 85 7339 to 85 7351 inclusive, he imposed a sentence of six months imprisonment, those sentences also to be served concurrently with all the other sentences.

11. In respect of each of the charges the subject of the informations numbered 85 7279 to 85 7284 inclusive and 85 7339 to 85 7351 inclusive, he imposed a sentence of six months imprisonment, those sentences also to be served concurrently with all the other sentences.

12. In respect of each of the charges the subject of the informations numbered 85 7286 to 85 7299 inclusive, 85 7301 to 85 7337 inclusive, 85 7352 to 85 7358 inclusive and 85 7360 to 85 7396 inclusive he imposed a sentence of nine months imprisonment, those sentences again to be served concurrently with all the other sentences.

(b) the gross value of that property does not,
in the opinion of the Public Trustee,
exceed $30,000.00,

(c) probate of the will, or administration of
the estate, of the person has not been
granted by the Court to any person; and

(d) the Public Trustee is entitled under the
next succeeding section to apply for an
order to collect and administer the estate
of the person."

Section 87C (4) provides as follows:

"(4) Where the Public Trustee has filed an
election, the estate of the person vests in
the Public Trustee, and the Public Trustee
has the powers and duties that he would
have had if the Court had, under the next
succeeding section, granted to the Curator
an order to collect and administer the
estate of the person."

13. Section 88 sets out the circumstances in which the Court may on application of the Public Trustee, grant to the Public Trustee an order to collect and administer the estate of any deceased person leaving real or personal estate within the jurisdiction.

14. Section 89 provides for the effect of an order to collect and administer in the following terms:

"89(1) Where an order to collect and administer
the estate of any deceased person is
granted, the Public Trustee shall have the
same powers, rights, and obligations in
respect of the estate, except as otherwise
expressly provided, as he would have had if
administration had been granted to him, and
the estate of the deceased shall vest in
him."

15. The effect of these provisions is that where the Public Trustee has filed a valid election pursuant to s.87C of the Ordinance, then the Public Trustee has under s.89 the same powers, rights and obligations in respect of the estate,

16. In respect of the charge the subject of the information numbered 85 7274 he imposed a sentence of 12 months imprisonment to be served concurrently with the sentences already imposed today.

17. In respect of the charge the subject of the information numbered 85 6341 he imposed a sentence of 12 months imprisonment; in respect of the charge the subject of the information numbered 85 7285 he imposed a sentence of 12 months imprisonment to be served cumulatively with that imposed in respect of the charge the subject of the information numbered 85 6341; in respect of the charge the subject of the information numbered 85 7300 he imposed a sentence of 12 months imprisonment to be served cumulatively with the sentences imposed in respect of the charges the subject of the informations numbered 85 6341 and 85 7285; in respect of the charge the subject of the information numbered 85 7338 he imposed a sentence of 12 months imprisonment, to be served cumulatively with the sentences imposed in respect of the charges the subject of the informations numbered 85 6341, 85 7285 and 85 7300; and in respect of the charge the subject of the information numbered 85 7359 he imposed a sentence of 12 months imprisonment, that sentence to be served cumulatively with the sentences imposed in respect of the charges the subject of the informations numbered 85 6341, 85 7285, 85 7300 and 85 7338. The bench sheet for the information numbered 85 7359 refers wrongly to the information numbered 85 7388 but the error did not carry through to the sentence as pronounced.

18. On the breach of recognizance he sentenced the appellant to imprisonment of 12 months, the sentence to be served concurrently with other sentences imposed.

19. He fixed a non-parole period of 4 years.

20. No pattern emerges from the sentences.

21. Evidence before the learned Magistrate showed that the appellant began to receive unemployment benefits from 9 July 1979. His wife and four children were living with him. On 25 February 1980 his wife gained employment and was thereafter continuously in receipt of wages. From that time, therefore, the appellant became ineligible for unemployment benefits. Nevertheless he continued to submit applications for such benefits on a fortnightly basis during the periods above referred to. He was interviewed by police on 3 October 1985 when he stated that he and his wife had separated some months earlier. (By 29 January 1986 they had become reconciled.) All told he was paid $44,486.00 to which he was not entitled as a result of the impositions. A calculation which pays no regard to any increases in benefits during the periods of the offences shows an average receipt of $353.06 per offence.

22. Evidence before the learned Magistrate indicated that the appellant had sustained an incapacitating back injury on 13 August 1984 during the course of his employment. In due course he underwent surgery on 10 September 1985.

23. A report by his treating neurosurgeon dated 12 December 1985 suggested that he would have remained unfit for work at least until 10 December 1985 at the earliest and that there might be some persisting disability in respect of work which involved heavy lifting or twisting.

24. The appellant was born in Yugoslavia on 24 May 1942. His father, a soldier, is said to have been killed in action when the appellant was four years old. This does not quite accord with his date of birth and the date of the end of the Second World War in Europe. His early life is said to have been difficult. He left school at 16 to commence a butchery apprenticeship and subsequently was conscripted for two years service in the Yugoslav army. He married before coming to Australia in 1968. After a short period at Albury he moved to Canberra where he appears to have lived ever since. He has four children who, at 20 December 1985, were aged 18, 17, 15 and 13 years.

25. He has a number of relevant convictions. On 15 February 1977 in the Canberra Court of Petty Sessions he was dealt with for six offences of embezzlement said to have taken place between 6 November 1976 and 23 December 1976. The first of these was found proved but sentence was deferred on the appellant's entering into a recognizance in the sum of $500 conditioned that he be of good behaviour for a period of 12 months and that he pay compensation totalling $130.18 and a penalty of $100. On the second charge he was fined $100 and ordered to pay compensation of $142. On the third he was fined $80 and ordered to pay compensation of $79. On each of the fourth and fifth he was fined $50 and ordered to pay compensation totalling $91.03 in respect of them while on the sixth he was fined $40 and ordered to pay compensation of $31.20.

26. At Queanbeyan Court of Petty Sessions on 18 March 1977 he was dealt with on a charge of false pretences. Sentence was deferred upon his entering into a recognizance to be of good behaviour for two years. He was ordered to pay compensation totalling $76.63.

27. On 13 October 1977 he was dealt with on two further charges of embezzlement. On the first charge sentence was deferred upon his entering into a recognizance to be of good behaviour for a period of one year and to pay compensation of $83. The second charge was found proved but the appellant was discharged.

28. Finally, on 28 September 1984, he was convicted of the offence of false pretences committed on 10 March 1984. He was released on entering into a recognizance to be of good behaviour for three years and ordered to pay a penalty of $500 and compensation of $2,300.

29. There was some faint suggestion that the offences of embezzlement were committed under a supposed claim of right but the fact is that convictions were recorded appropriately and I think I should treat those offences as constituting a record of dishonesty without discount. The charge of false pretences dealt with on 28 September 1984 related, apparently, to the sale of a car which was in his possession under a hire purchase agreement and hence was not his to sell.

30. I have taken into account all the material in a pre-sentence report dated 20 December 1985. I accept, as did the learned Magistrate, that it is easily understandable that those not in receipt of an adequate income for the needs of their families should be anxious about it but, as the learned Magistrate indicated, there are many in a similar situation who do not resort to the type of action taken by the appellant to overcome his problems.

31. In Laxton v. Justice (1985) 16 ACrimR 46, Olsson J in the Supreme Court of South Australia dealt with a man who had pleaded guilty to seven counts alleging breaches of the Social Security Act 1947 (Cwth). He had falsely pretended that he had a de facto wife and dependant child and so obtained $1,802 to which he was not entitled. He was sentenced to four months imprisonment but the sentencing judge directed that he be released after serving 28 days on entering into a bond to be of good behaviour and to be under the supervision of a probation officer.

32. The offender had a very bad criminal record and there were no substantial mitigating circumstances. The Director of Public Prosecutions appealed against the sentence. During the course of his reasons for judgment, Olsson J referred at p 50 to three other cases and went on to say:-

"It is possible to distil the following
propositions from those authorities:

(1) Offences of this type are now
prevalent. The offence is difficult to
detect and penalties should reflect a concern
for the protection of the revenue.

(2) Frauds of this kind must be viewed
seriously because they threaten the basis of
the social security system which is designed
to provide financial security for those in
the community who are in need. A deterrent
penalty is called for.

(3) It is relevant to regard a continuing
series of frauds of this type as increasing
the moral blameworthiness of the offender's
deceits by way of contrast with single or
short term offences.

(4) Whilst it may be proper in cases of
first offences of this type accompanied by
mitigating circumstances to impose a fine,
nevertheless a custodial sentence may well be
appropriate in the case of serious frauds
unaccompanied by substantial mitigating
circumstances."

33. The first sentence in the first proposition is a statement of fact. There is no evidence before me as to the prevalence of the type of offence I am considering. However, I think that the rest of it and propositions 2, 3 and 4 are valid whether evidence of the prevalence of the offences is available or not.

34. Accordingly, I think the proper course in these cases was to impose sentences of imprisonment, lighter sentences in respect of the earlier sentences, heavier sentences in respect of the later ones. I therefore do not think that the learned Magistrate erred in principle in deciding that offences of imprisonment were the appropriate penalties. I think, however, that he considered himself able to impose a heavier sentence in respect of each offence than was actually the case. He said, during the course of the hearing, "So it is two years or $5,000 per each." In referring to the sum of $5,000 he was referring to s.16 of the Crimes Act. That section provides that a fine may be ordered in lieu of imprisonment in appropriate circumstances. Under sub-paragraph (a)(iii) of s.16(2) the maximum fine which may be imposed in respect of an offence punishable by imprisonment for a period exceeding 12 months but not exceeding two years is $5,000 but by s.16(3) the maximum fine which a court of summary jurisdiction can impose on conviction of a person under the Crimes Act is $2,000.

35. In response to the learned Magistrate's remark concerning the maximum penalties applicable, counsel then appearing for the appellant said, "That appears to be the case, your Worship."

36. It seems, therefore, that the learned Magistrate approached the question of sentencing under a misapprehension as to the extent of his powers. In the result, I think he fell into error and that the effective sentences imposed were too great.

37. At the same time I think that a substantial period of imprisonment was called for but I think an effective total head sentence of three years would have been enough.

38. This effective sentence can be achieved by the use of cumulative sentences as provided for by s.19 of the Crimes Act.

39. The learned Magistrate also erred, in my opinion, in fixing a non-parole period of 4 years. With ordinary remissions the appellant would have served the effective head sentences many months before the non-parole period expired. This, as the authorities consistently show, is inappropriate. A non-parole period ought to be fixed which provides some incentive to an offender to seek his discharge on parole before the sentences imposed upon him are, with their attendant remissions, served.

40. I think the sentence imposed in respect of the information numbered 86 716, that laid under s.556C(1)(a) of the Crimes Act 1900, entirely proper and intend to dismiss the appeal against it.

41. To give effect otherwise to the conclusions I have reached I propose to allow the appeals to the extent hereinafter indicated and to set aside the sentences imposed by the learned Magistrate except to the extent that the sentences I am about to impose coincide with those imposed by him.

42. In respect of each of the charges referred to in the informations numbered 85 6341, 85 6342 and 85 7358 to 85 7396 inclusive I propose to sentence the appellant to imprisonment for three months, the sentences to be served concurrently with each other and with those about to be imposed and to commence on 29 January 1986.

43. In respect of each of the charges referred to in the informations numbered 85 7317 to 85 7357 inclusive I propose to sentence the appellant to imprisonment for six months, the sentences to be served concurrently with each other and with those about to be imposed and with those already imposed by me this day and to commence on 29 January 1986.

44. In respect of each of the charges referred to in the informations numbered 85 6343 and 85 7277 to 85 7316 inclusive I propose to sentence the appellant to imprisonment for nine months, the sentences to be served concurrently with each other and with those about to be imposed and with those already imposed by me this day and to commence on 29 January 1986.

45. In respect of each of the charges referred to in the informations numbered 85 7274, 85 7275 and 85 7276, I propose to sentence the appellant to imprisonment for twelve months, the sentences to be served concurrently with those already imposed by me this day but cumulatively with each other so that the first sentence, that in respect of the information numbered 85 7274 shall be served first, commencing on 29 January 1986, with the sentences imposed in respect of the informations numbered 85 7275 and 85 7276 being served respectively successively thereafter.

46. Had it fallen to me to fix a non-parole period in the first instance I would have fixed one of 15 months but in all the circumstances, since the appellant has been in custody since 29 January 1986, I propose to fix a non-parole period to expire on 28 April 1987.