Hue Thi Le v Gary Wayne Shute [2000] ACTSC 56 (7 July 2000)

Last Updated: 16 October 2000

HUE THI LE v GARY WAYNE SHUTE [2000] ACTSC 56 (7 JULY 2000)

CATCHWORDS

APPEAL - convictions for Social Security offences - distinction between qualification and payability of Social Security benefits - whether Magistrate erred in not determining qualification of the appellant.

APPEAL - whether sentences manifestly excessive.

APPEAL - criminal law - jurisdiction, practice and procedure - jurisdiction of Supreme Court in determining appeal from Magistrate - amending informations incorrectly drawn -power of Supreme Court to amend incorrect informations.

Social Security Act 1991 (Cth), ss 1347, 1350

Crimes (Offences Against the Government) Act 1989 (ACT), s 6

Magistrates Court Act 1930 (ACT), s 218

Crimes Act 1914 (Cth), s 15C

Banque Commerciale SA en liq v Akhil Holdings Ltd [1990] HCA 11; (1990) 92 ALR 53, referred to

Teoh v The Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1017; (1994) 121 ALR 436, referred to

Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd (unreported, 3 April 2000, FCA 389, Gallop, Hill and Gyles JJ), referred to

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588, referred to

Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, referred to

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, referred to

Walsh v Law Society of NSW [1999] HCA 33; (1999) 73 ALJR 1138, referred to

R v Purdon (unreported decision of the New South Wales Court of Criminal Appeal delivered 27 March 1997), referred to

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 100 of 1998

Judge: Gallop J

Supreme Court of the ACT

Date: 7 July 2000

IN THE SUPREME COURT OF THE )

) No. SCA 100 of 1998

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: HUE THI LE

Appellant

AND: GARY WAYNE SHUTE

Respondent

ORDER

Judge: Gallop J

Date: 7 July 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The convictions and sentences be confirmed.

1. The appellant was charged with seven offences against s 1347(a) of the Social Security Act 1991 (Cth) (the Commonwealth offences) and one offence against s 6 of the Crimes (Offences Against the Government) Act 1989 (ACT) (the ACT offence).

2. In relation to the Social Security offences, the charges were that over several periods between January 1994 and May 1996, the appellant received several different types of benefits, which were not payable to her. The ACT charge was that the appellant falsified a rental assistance registration form to obtain rent assistance, which was not payable.

3. The appellant pleaded not guilty to the charges in the Magistrates Court before Magistrate Nicholl. It appears from the evidence at the trial that the appellant was claiming various forms of Social Security benefits over various periods between 1993 and 1996, which were not payable to her. She also completed a "Rental Assistance" form on which she had stated that she had been either living or working in the Territory for a period of 12 months during 1994 and 1995, when in fact she had been living in Queanbeyan and working at a bakery (the "Riverside Hot Bake") with a man alleged to be her de facto husband.

4. On 4 September 1998, the Magistrate found the accused guilty of all the offences and adjourned the matter until 20 October 1998 for sentencing and to allow for the preparation of a pre-sentencing report.

5. In respect of the Social Security charges, he sentenced the appellant to six months imprisonment to be served by way of periodic detention over 26 detention periods and ordered that she repay $16,739.02 to the Department of Social Security.

6. In respect of the ACT offence, the Magistrate sentenced the appellant to six months imprisonment suspended on condition that the appellant enter into a recognisance self in the sum of $2,000.00 to be of good behaviour for a period of two years, and submit herself to the supervision of the Director of Corrective Services for one year. He also ordered that she repay $19,146.50 within a two year period.

7. I reserved my decision after I heard argument on 2 February 2000 and gave leave to the respondent to amend the Appeal Book by inserting:

* two pages called "Social Security Overpayment Calculations and NSS Payment History" at pages 205A and 205B; and

* the appellant's criminal history (as at the time of the original hearing) and the pre-sentence report at page 205C and following.

8. On the hearing of the appeal, Counsel for the appellant submitted that, in respect of the Commonwealth offences, the Magistrate erred in that he should have determined the Secretary of the Department of Social Security's state of mind as to the appellant's eligibility for the respective benefits rather than determining himself the appellant's eligibility. As there was no evidence of the Secretary's state of mind, the Prosecution had failed to establish a prima facie case.

9. After I had reserved my decision, I examined the contents of the Appeal Book. There are contained therein five copies of summonses setting out five charges of allegedly contravening s 1347 of the Social Security Act 1991 (Cth). In addition, the Appeal Book contains copies of another two informations charging offences against s 1347 of the Act. The Appeal Book also contains a copy of the summons and the bench sheet charging the appellant with one offence against s 6 of the Crimes (Offences Against the Government) Act 1989 (ACT).

10. The summonses and the informations charging offences against s 1347 of the Social Security Act are, for present purposes, in identical terms except for appropriate variations. They allege that the appellant contravened s 1347 of the Social Security Act 1991 and furnished particulars to the effect that she, in the Australian Capital Territory (between the relevant dates) did knowingly obtain payment of (a benefit) under the Social Security Act which was not payable at all.

11. Having heard argument, I came to the conclusion that the appellant had not been appropriately charged in the Magistrates Court. I held that the informations wrongly charged the appellant with offences against s 1347 of the Social Security Act 1991 (Cth) which did not create any offences. I held that the offence creating provision is s 1350 and, accordingly, that if the informations were not amended and, subject to the disposition of this appeal, the appellant would stand convicted of seven offences which do not exist.

12. The informant in the Magistrates Court should have charged the appellant that she did contravene a "section in Division 1 of the Social Security Act, namely s 1347 in that she did knowingly obtain payment of (a benefit) under the Social Security Act which was not payable at all". I expressed the opinion that an amendment of the informations was necessary to sustain the convictions. I published my written reasons on 23 February 2000.

13. The matter came back before me for resolution of the appeal on 29 June 2000. The respondent (the informant in the court below), applied to amend the informations charging offences against s 1347 of the Social Security Act in accordance with the terms of the suggestions in my interim judgment. It was submitted on behalf of the respondent that this Court has power to amend the informations pursuant to s 218 of the Magistrates Court Act. Section 218 reads,

"Orders by Supreme Court on appeals

(1) On an appeal to which this Division applies, the Supreme Court may -

(a) affirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from;

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; or

(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to such directions as the Supreme Court thinks fit.

(2) A judgment or order of the Supreme Court under paragraph (1)(a) or (b) shall have effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly."

14. The submission was that having allowed the amendments of the informations, this Court could then vary the convictions pursuant to s 218(1)(a). There is no doubt that the Magistrates Court could have allowed amendments to the informations at the appropriate time pursuant to s 15C of the Crimes Act 1914 (Cth). Section 15C reads,

"Form of indictments, informations and summonses

(1) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.

(2) If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.

(3) The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant."

15. The further submission of the respondent was that having allowed the amendments of the informations, this Court would then be in a position to dispose of the appeal on the merits. Alternatively, it was submitted on behalf of the respondent that this Court should remit the proceedings to the Magistrates Court so that the amendments could be made pursuant to s 15C of the Crimes Act 1914.

16. Both courses for disposal of the matter since my Interim Judgment were opposed by the appellant on the grounds that the convictions are a nullity, because the offences are not known to the law and there is no power in any court to amend an information which discloses no offence. It was submitted on behalf of the appellant that the appropriate course is to quash the convictions for the seven "offences".

17. As to the alternative submission, it was submitted on behalf of the appellant that the appropriate course is to remit the proceedings to the Magistrates Court where the application for amendment can then be made. Counsel for the appellant foreshadowed, however, that an application to amend pursuant to s 15C of the Crimes Act 1914, can only be made "at the hearing of any ... information ..." and that the hearing has now been held. Accordingly, any application to amend in the Magistrates Court would be opposed.

18. Having considered the submissions put, I am of the opinion that this Court should now allow the amendment of the informations in the manner sought by the respondent pursuant to s 15C of the Crimes Act 1914 as an amendment which the Magistrates Court should have made at the hearing.

19. In reaching that opinion, I considered whether permission to amend the informations should be granted as the informations in their amended form would not require a re-examination of facts already considered by the Magistrates Court or raise matters of controversy not previously considered. I cannot discern that the effect of the amendment would involve the presentation of a new or different case on appeal from that which was conducted at the trial in the Magistrates Court (see Banque Commerciale SA en liq v Akhil Holdings Ltd [1990] HCA 11; (1990) 92 ALR 53 applied by Lee J in Teoh v The Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1017; (1994) 121 ALR 436 at 445 and Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd (unreported, 3 April 2000, FCA 389, Gallop, Hill and Gyles JJ)).

20. For these reasons, it appears to me to be desirable or necessary to amend the informations to enable the real question in dispute to be determined, namely, whether the appellant was properly convicted of seven offences of knowingly obtaining payment of Social Security payments which were not payable at all. On a proper application that amendment could have been made by the Magistrates Court on the hearing of the informations and could still be made by that court if the proceedings were remitted to that court and the hearing re-opened for the purpose of the application to amend.

21. Accordingly, I amend the seven informations alleging contraventions of s 1347 of the Social Security Act 1991 by deleting the word and figures "section 1347" and substituting "section 1350" and further by inserting in the body of the informations after the specified dates "did contravene a section in Division 1 of the Social Security Act, namely s 1347 in that she ...".

22. I turn now to the substance of the appeal.

23. The notice of appeal is egregiously cryptic in respect of the grounds of appeal which are stated,

"The convictions are wrong in law, unsafe and unsatisfactory.

The sentences are manifestly excessive."

24. On the hearing of the appeal, counsel for the appellant relied only on the ground that because of the state of the evidence before the Magistrate, he could not have been satisfied beyond reasonable doubt that the respective allowance was not payable to the appellant at the time when she obtained it, nor that the appellant knew that the respective allowance was not payable to her.

25. The substance of those grounds was quite succinctly stated by counsel for the appellant in relation to the Social Security Act offences, namely, that pursuant to the relevant legislation, the appellant qualified for the respective allowance if she satisfied the Secretary of the Department of Social Security about the relevant matters identified in the respective provisions of the Social Security Act and that, as there was no evidence one way or the other about the state of mind of the Secretary, the prosecution had failed to prove the elements of the offences in dispute, namely, whether the respective allowance was payable at the time when she obtained it and whether the appellant knew that the respective allowance was not payable to her.

26. It was submitted on behalf of the respondent that in making those submissions the appellant confused qualification for an allowance and payability of the allowance. It was submitted that there was evidence before the Magistrate that in respect of each of the Social Security offences the allowance was not payable at all because of the provisions to the effect that the respective allowance is not payable at all if the person's allowance rate would be nil. The respondent relied upon documents which were tendered in evidence before the Magistrate and became exhibit 7.

27. Section 1361 of the Social Security Act provides that if the signature of any person who holds or has held one of the nominated offices or is or was an officer purports to be attached or appended to any official document, the document must be received in all courts as prima facie evidence of the facts and statements contained in it. Before the Magistrates Court the prosecution relied upon documents tendered through the witness Lisa Constable which showed that the appellant's entitlement to the respective allowances was nil. There was not, however, the signature of any of the designated persons attached or appended to the documents. If the signature had been attached, the documents would have been prima facie evidence of the facts and statements contained in them. This was a serious defect in the presentation of the prosecution's case. Nevertheless, they were not objected to and therefore became prima facie evidence of their contents notwithstanding the absence of the signature of the relevant officer.

28. A resolution of the appeal involves an examination of the relevant provisions of the Social Security Act 1991 relating to the payments of Job search Allowance, Newstart allowance, Special Benefit, Family Allowance and Parenting Allowance. The legislation has undergone many amendments but counsel were agreed that the state of those provisions at the relevant times were as set out below.

"PART 2.11 - JOB SEARCH ALLOWANCE

Division 1 - Qualification for and payability of job search allowance

Subdivision A - Basic qualifications

Qualification for job search allowance

513. (1) Subject to sections 514, 515 and 519, a person is qualified for a job search allowance in respect of a period if:

(a) the person satisfies the Secretary that throughout the period the person is unemployed; and

(b) throughout the period, or for each period within the period, the person either:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test; and

(c) throughout the period, the person:

(i) is at least 16 and has not reached the pension age; and

(ii) is an Australian resident; and

(iii) is in Australia; and

Note: see subsection (3).

(iv) is registered by the CES in an allowance category as being unemployed; and

(d) throughout the period, or throughout each period within the period, the person:

(i) has not turned 18; or

(ii) has turned 18 but has not been registered as required by subparagraph (c)(iv) for longer than 12 months.

Subdivision B - Activity test

Activity test

522. (1) Subject to subsection (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a) actively seeking; and

(b) willing to undertake;

paid work that in the opinion of the Secretary is suitable to be undertaken by the person.

522. (2) A person also satisfies the activity test in respect of a period if:

(a) the Secretary is of the opinion that, throughout the period, the person:

(i) should undertake particular paid work that, in the opinion of the Secretary, is suitable to be done by the person; or

(ii) should:

(A) undertake a course of vocational training; or

(B) participate in a labour market program; or

(C) participate in another course;

approved by the Employment Secretary which is likely to:

(D) improve the person's prospects of obtaining suitable paid work; or

(E) assist the person in seeking suitable paid work; or

(iii) in a case where the person lives in an area where:

(A) there is no locally accessible labour market; and

(B) there is no locally accessible vocational training course or labour market program;

should participate in an activity suggested by the person and approved by the CES; and

(b) the Secretary notifies the person that the person is required to act in accordance with the opinion; and

(c) the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement.

Note: for "Employment Secretary" see section 23.

522. (3) If a person fails to take reasonable steps to comply, throughout a period, with a requirement of the Secretary under subsection (2), the person cannot be taken to satisfy the activity test in respect of that period in spite of any compliance of the person with subsection (1).

Note: for situations where a person is not required to satisfy the activity test see:

(a) section 523 (persons attending training camps);

(b) section 524 (certain allowees under 18 engaged in voluntary work);

(ba) section 524A (certain allowees between 18 and 50 engaged in voluntary work);

(c) section 525 (certain allowees over 50 engaged in voluntary work).

Subdivision C - Situations where allowance not payable (general)

Job search allowance not payable in certain situations

526. (1) A job search allowance is not payable to a person for a period during which the person is qualified for job search allowance (see section 513) if during that period:

(a) the person has not provided a tax file number for the person (see section 527) or for the person's partner (see section 528); or

(b) the value of the person's assets exceeds the person's assets value limit (see sections 529 and 530); or

(c) the person is a full-time student (see section 531); or

(d) another income support payment is being paid to the person (see section 532); or

(da) the person is receiving income that is paid by a community or group from funds provided under a Commonwealth funded employment program (see section 532A); or

(e) the job search allowance has not commenced to be payable (see sections 534 and 562); or

(f) the person is subject to an unused annual leave waiting period and has not served that waiting period (see sections 535 to 537); or

(g) the person is subject to an ordinary waiting period and has not served that waiting period (see sections 538 and 539); or

(h) the person is subject to an education leavers waiting period and that period has not ended (see sections 540, 540A and 541A); or

(ha) the person is subject to a newly arrived resident's waiting period and that period has not ended (see sections 541B and 541C); or

(i) the person fails to comply with a requirement that the person:

(i) attend an office of the Department or of the CES; or

(ii) contact the Department or the CES; or

(iii) give information;

as required by section 543; or

(j) a period of non-payment has been imposed because:

(i) the person had previously ceased to be qualified for job search allowance for failure to satisfy the activity test (see section 542); or

(ii) the person had previously failed to comply with a requirement (see section 543) to:

(A) attend an office of the Department or of the CES; or

(B) contact the Department or the CES; or

(C) give information; or

(iii) the person's unemployment is due to a voluntary act of the person (see section 544); or

(iv) the person's unemployment is due to misconduct by the person (see section 545); or

(v) the person has refused an offer of employment (see section 546); or

(vi) the person failed to comply with notification requirements (see section 547); or

(vii) the person had previously ceased to be qualified for job search allowance because the person was not registered with the CES in an allowance category as being unemployed (see section 548); or

(viii) the person is a seasonal worker (see section 549); or

(ix) the person moved to an area of lower employment prospects (see section 550); or

(k) the person is in gaol (see Part 3.13); or

(l) the person is subject to a compensation preclusion period (see Part 3.14).

Note 1: for "serving a waiting period" see subsection 23(10).

Note 2: "CES" means Commonwealth Employment Service (see section 23).

Note 3: for "allowance category" see subsection 23(4A).

526. (2) Subject to subsection (3), a job search allowance is not payable to a person if the person's job search allowance rate would be nil.

526. (3) Subsection (2) does not apply to a person if the person's rate is nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a) Part 2.23 of this Act; or

(b) Division 2 of Part VIIA of the Veterans' Entitlements Act.

PART 2.12 - NEWSTART ALLOWANCE

Division 1 - Qualification for and payability of newstart allowance

Subdivision A - Basic qualifications

Qualification for newstart allowance

593. (1) Subject to sections 594 and 598, a person is qualified for a newstart allowance in respect of a period if:

(a) the person satisfies the Secretary that throughout the period the person is unemployed; and

(b) throughout the period, or for each period within the period, the person satisfies the activity test; and

(c) at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

(d) at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

(e) when the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

(f) while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

(g) throughout the period the person:

(i) is at least 18 and has not reached the pension age; and

(ii) is an Australian resident; and

(iii) is in Australia; and

Note: see subsection (3).

(iv) is registered by the CES in an allowance category as being unemployed; and

(h) throughout the period the person has been registered as required by subparagraph (g)(iv) for longer than 12 months; and

(i) The person was not in receipt of a job search allowance during the period.

Note 1: a person may be treated as unemployed (see section 595). Note 2: the activity test is set out in section 601. Note 3: for Newstart Activity Agreement see sections 604 to 607. Note 4: "CES" means Commonwealth Employment Service (see section 23). Note 5: for "pension age" see section 23. Note 6: for "Australian resident" see section 7. Note 7: for "Allowance category" see subsection 23 (4A). Note 8: a person may not be qualified if the person's unemployment is due to industrial action (see section 596). Note 9: a person may not be qualified if the person has reduced the person's employment prospects by moving to an area of lower employment prospects (see section 597). Note 10: where circumstances beyond a person's control prevent the person from being registered at the CES, this requirement may be waived (see section 599). Note 11: a person unregistered for up to 13 weeks may be taken to be registered (see section 599). Note 12: a person could be in receipt of a job search allowance during a period for which the person would qualify for a newstart allowance, if paragraph (i) was disregarded, because of section 515 (extension of job search allowance to end of pay period) or because of differences in calculating 12 months registration under subsections 520(3) and 599(3). Note 13: a newstart allowance is not payable in certain situations even if the person is qualified (see Subdivisions C, D, E and F). Note 14: a newstart allowance may continue to be paid during incapacity (see section 594). Note 15: if a person is participating in a Jobskills placement see section 595A.

593. (2) Subject to section 594, a person is qualified for a newstart allowance in respect of a period if:

(a) the person is a financial hardship farmer throughout the period; and

(b) the Secretary is satisfied that this subsection should apply to the person; and

(c) at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

(d) at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

(e) when the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

(f) while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

(g) throughout the period, the person:

(i) is at least 18 and has not reached the pension age; and

(ii) is an Australian resident; and

(iii) is in Australia; and

Note: see subsection (3).

(iv) is registered by the CES in an allowance category as being unemployed; and

(h) throughout the period the person has been registered as required by subparagraph (g)(iv) for longer than 12 months; and

(i) the person was not in receipt of a job search allowance during the period.

Note 1: for "financial hardship farmer" see subsection 23(1). Note 2: for Newstart Activity Agreement see sections 604 to 607. Note 3: "CES" means Commonwealth Employment Service (see section 23). Note 4: for "pension age" see section 23. Note 5: for "Australian resident" see section 7. Note 6: for "Allowance category" see subsection 23 (4A). Note 7: where circumstances beyond a person's control prevent the person from being registered at the CES, this requirement may be waived (see section 599). Note 8: a person unregistered for up to 13 weeks may be taken to be registered (see section 599). Note 9: a person could be in receipt of a job search allowance during a period for which the person would qualify for a newstart allowance, if paragraph (i) was disregarded, because of section 515 (extension of job search allowance to end of pay period) or because of differences in calculating 12 months registration under subsections 520(3) and 599(3). Note 10: a newstart allowance is not payable in certain situations even if the person is qualified (see Subdivisions C, D, E and F). Note 11: a newstart allowance may continue to be paid during incapacity (see section 594).

593. (3) A person is not disqualified for newstart allowance because of being outside Australia during a period if the person is attending a training camp during that period as a member of:

(a) the Australian Naval Reserve; or

(b) the Naval Emergency Reserve Forces; or

(c) the Australian Army Reserve; or

(d) the Australian Air Force Reserve; or

(e) the Air Force Emergency Force; or

(f) the Army Individual Emergency Reserve.

Note: see also section 603 which relieves people attending these training camps from the activity test.

593. (4) If:

(a) a person was receiving a social security pension or a service pension; and

(b) the person claims a newstart allowance within 14 days of the day on which the last instalment of the person's pension was paid; and

(c) the person becomes qualified for a newstart allowance at some time during the 14 day period but after the first day of that period;

the person is taken to be qualified for a newstart allowance for the whole of the 14 day period.

Note: subsection (4) operates when a person transfers from a pension to a newstart allowance and the person is not qualified for a newstart allowance immediately after the day on which the person's last instalment of pension is paid. The subsection deems the person to be so qualified. As a result, the person may be paid a newstart allowance for the period beginning on the day after the day on which the person's last instalment of pension was paid. The subsection aims to ensure that there is minimal disruption to a person's payments when a person transfers from a pension to a newstart allowance.

Subdivision B - Activity test

Activity test

601. (1) Subject to subsection (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a) actively seeking; and

(b) willing to undertake;

paid work that in the opinion of the Secretary is suitable to be undertaken by the person.

601. (2) A person also satisfies the activity test in respect of a period if:

(a) the Secretary is of the opinion that, throughout the period, the person:

(i) should undertake particular paid work that, in the opinion of the Secretary, is suitable to be done by the person; or

(ii) should:

(A) undertake a course of vocational training; or

(B) participate in a labour market program; or

(C) participate in another course;

approved by the Employment Secretary which is likely to:

(D) improve the person's prospects of obtaining suitable paid work; or

(E) assist the person in seeking suitable paid work; or

(iii) in a case where the person lives in an area where:

(A) there is no locally accessible labour market; and

(B) there is no locally accessible vocational training course or labour market program;

should participate in an activity suggested by the person and approved by the Employment Secretary; and

(b) the Secretary notifies the person that the person is required to act in accordance with the opinion; and

(c) the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement.

Note: for "Employment Secretary" see section 23.

601. (3) If a person fails to take reasonable steps to comply, throughout a period, with a requirement of the Secretary under subsection (2), the person cannot be taken to satisfy the activity test in respect of that period in spite of any compliance of the person with subsection (1).

601. (4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the CES and the person.

601. (5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the CES and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).

Note: for situations where a person is not required to satisfy the activity test see:

(a) section 602 (certain persons over 50);

(b) section 603 (persons attending training camps or in remote areas).

Subdivision D - Situations where allowance not payable (general)

Newstart allowance not payable in certain situations

608. (1) A newstart allowance is not payable to a person for a period during which the person is qualified for newstart allowance (see section 593) if during that period:

(a) the person has not provided a tax file number for the person (see section 609) or for the person's partner (see section 610); or

(b) the value of the person's assets exceeds the person's assets value limit (see sections 611 and 612); or

(c) the person is a full-time student (see section 613); or

(d) another income support payment is being paid to the person (see section 614); or

(da) the person is receiving income that is paid by a community or group from funds provided under a Commonwealth funded employment program (see section 614A); or

(e) the newstart allowance has not commenced to be payable (see sections 616 and 645); or

(f) the person is subject to an unused annual leave waiting period and has not served that waiting period (see sections 617 to 619); or

(g) the person is subject to an ordinary waiting period and has not served that waiting period (see sections 620 and 621); or

(h) the person is subject to an education leavers waiting period and that period has not ended (see sections 622 and 623); or

(ha) the person is subject to a newly arrived resident's waiting period and that period has not ended (see sections 623A and 623B); or

(i) the person fails to comply with a requirement that the person:

(i) attend an office of the Department or of the CES; or

(ii) contact the Department or the CES; or

(iii) give information;

as required by section 627; or

(j) a period of non-payment has been imposed because:

(i) the person had previously ceased to be qualified for newstart allowance for failure to satisfy the activity test (see section 624); or

(ii) the person had previously ceased to be qualified for newstart allowance for failure to enter into a Newstart Activity Agreement (see section 625); or

(iii) the person had previously ceased to be qualified for newstart allowance for failure to comply with a Newstart Activity Agreement (see section 626); or

(iv) the person had previously failed to comply with a requirement (see section 677) to:

(A) attend an office of the Department or of the CES; or

(B) contact the Department or the CES; or

(C) give information; or

(v) the person's unemployment is due to a voluntary act of the person; or

(vi) the person's unemployment is due to misconduct by the person (see section 629); or

(vii) the person has refused an offer of employment (see section 630); or

(viii) the person failed to comply with notification requirements (see section 631); or

(ix) the person had previously ceased to be qualified for newstart allowance because the person was not registered with the CES in an allowance category as being unemployed (see section 632); or

(x) the person is a seasonal worker (see section 633); or

(xi) the person moved to an area of lower employment prospects (see section 634); or

(k) the person is in gaol (see Part 3.13); or

(l) the person is subject to a compensation preclusion period (see Part 3.14).

Note 1: for "serving a waiting period" see subsection 23(10). Note 2: "CES" means Commonwealth Employment Service (see section 23). Note 3: for "allowance category" see subsection 23 (4A).

608. (2) Subject to subsection (3), a newstart allowance is not payable to a person if the person's newstart allowance rate would be nil.

608. (3) Subsection (2) does not apply to a person if the person's rate is nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a) Part 2.23 of this Act; or

(b) Division 2 of Part VIIA of the Veterans' Entitlements Act.

PART 2.15 - SPECIAL BENEFIT

Division 1 - Qualification for and payability of special benefit

Subdivision A - qualification

Qualification for special benefit

729. (1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

729. (2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a) no social security pension is payable to the person during the period; and

(b) no other social security benefit is payable to the person for the period; and

(ba) no youth training allowance is payable to the person for the period;

(c) the person is not disqualified for a job search allowance or newstart allowance for the period solely because of the operation of one or more of the following:

(i) subparagraph 513(c)(iv) or 593(g)(iv) (is not registered as being unemployed by the CES);

(ii) section 517 or 596 (unemployment due to industrial action);

(iii) section 518 or 597 (move to area of lower employment prospects); and

(d) in a case where the person is qualified for a job search allowance or newstart allowance but the allowance is not payable to the person for the period - that result is not produced solely by the operation of one or more of the following:

(ia) section 542 or 624 (person failing to satisfy activity test);

(i) subsection 546C(4) or 630C(4) (person failing to comply with Secretary's requirements);

(ii) section 544 or 628 (unemployment due to voluntary act);

(iii) section 545 or 629 (unemployment due to misconduct);

(iv) section 546 or 630 (refusal of job offer);

(v) section 547 or 631 (person failing to comply with notification requirement);

(vi) section 548 or 632 (person failing to continue CES registration);

(vii) section 549 or 633 (seasonal workers);

(viii) section 550 or 634 (move to area of lower employment prospects); and

(da) the person is not disqualified for a youth training allowance for the period solely because of the operation of one or more of the following:

(i) subparagraph 65(1)(g)(iv) of the Student and Youth Assistance Act 1973 (is not registered as being unemployed by the CES);

(ii) section 69 of that Act (unemployment due to industrial action);

(iii) section 71 of that Act (move to area of lower employment prospects); and

(db) if the person is qualified for a youth training allowance but the allowance is not payable to the person for the period - that result is not produced solely by the operation of one or more of the following:

(i) section 114 of the Student and Youth Assistance Act 1973 (person failing to comply with Secretary's requirements);

(ii) section 103 of that Act (person failing to satisfy activity test);

(iii) section 106 of that Act (unemployment due to voluntary act);

(iv) section 107 of that Act (unemployment due to misconduct);

(v) section 108 of that Act (refusal of offer of employment);

(vi) section 115 of that Act (person failing to comply with notification requirement);

(vii) section 120 of that Act (person failing to continue CES registration);

(viii) section 121 of that Act (seasonal workers);

(ix) section 122 of that Act (move to area of lower employment prospects); and

(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f) the person is an Australian resident, or has a qualifying residence exemption for a special benefit; and

(fa) the person is in Australia throughout the period; and

Note 1: for "Australian resident" see subsection 7(2).

Note 2: for "qualifying residence exemption" see subsection 7(6).

Note 3: when making a declaration about a visa (see paragraph (f)) the Minister must act in accordance with subsection (7).

729. (3) The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.

729. (4) For the purposes of paragraph (2)(d), a job search allowance or newstart allowance is to be taken to be not payable to a person for a period because of the operation of a provision if:

(a) the person has claimed the allowance for the period and the allowance is not payable to the person because of the operation of the provision; or

(b) were the person to claim the allowance for the period the allowance would not be payable to the person because of the operation of the provision.

729. (4A) For the purposes of paragraph (2)(db) a youth training allowance is taken to be not payable to a person for a period because of the operation of a provision if:

(a) the person has claimed the allowance for the period and the allowance is not payable to the person because of the operation of the provision; or

(b) were the person to claim the allowance for the period the allowance would not be payable to the person because of the operation of the provision.

729. (5) For the purposes of paragraph (2)(fa), if:

(a) a person is temporarily absent from Australia; and

(b) the Secretary is satisfied that the person's absence is due to exceptional circumstances;

the person is taken to be in Australia during:

(c) if the period does not exceed 13 weeks - the whole of that period; or

(d) if the period exceeds 13 weeks - their first 13 weeks of that period.

729. (6) If:

(a) a person was receiving a social security pension or a service pension; and

(b) the person claims a special benefit within 14 days of the day on which the last instalment of the person's pension was paid; and

(c) the person becomes qualified for a special benefit at some time during the 14 day period but after the first day of that period;

the person is taken to be qualified for a special benefit for the whole of the 14 day period.

Note: subsection (6) operates when a person transfers from a pension to a special benefit and the person is not qualified for a special benefit immediately after the day on which the person's last instalment of pension is paid. The subsection deems the person to be so qualified. As a result, the person may be paid a special benefit for the period beginning on the day after the day on which the person's last instalment of pension was paid. The subsection aims to ensure that there is minimal disruption to a person's payments when a person transfers from a pension to a special benefit.

729. (7) When declaring a visa to an approved visa for the purposes of paragraph (2)(f), the Minister may only identify the visa by reference to a class of visas prescribed by regulations made under the Migration Act 1958. The declaration is a disallowable instrument.

Subdivision B - Payability

Special benefit not payable in some circumstances

732. (1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:

(a) the value of the person's assets exceeds the assets value limit (see sections 733 and 734); or

(aa) the person has not provided a tax file number for the person (see section 734A) or the person's partner (see section 734B); or

(b) the person is receiving another income support payment (see section 735); or

(c) the person fails to comply with a requirement that the person:

(i) attend a medical examination; or

(ii) receive treatment; or

(iii) undertake a training course; or

(iv) do suitable work;

as required by section 736; or

(d) the person is a full-time student (see section 737) or is receiving a payment under certain educational schemes (see section 738); or

(e) the person is in gaol (see Part 3.13); or

(f) the person has received a compensation payment (see Part 3.14).

732. (2) Subject to subsection (3), a special benefit is not payable to a person if the person's special benefit rate would be nil.

Note: see section 746 for the rule that special benefit rate is not to exceed the equivalent job search allowance or newstart allowance rate.

732. (3) Subsection (2) does not apply to a person if the person's rate is nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a) Part 2.23 of this Act; or

(b) Division 2 of Part VIIA of the Veterans' Entitlements Act.

Division 4 - Rate of special benefit

Rate of special benefit

746. (1) The rate of a person's special benefit is the fortnightly rate determined by the Secretary in his or her discretion.

746. (2) Subject to Part 2.24 (major disaster) and section 1161 (release from gaol or from psychiatric confinement), the rate of a person's special benefit is not to exceed the rate at which job search allowance, youth training allowance or newstart allowance would be payable to the person if:

(a) the person were qualified for job search allowance, youth training allowance or newstart allowance; and

(b) job search allowance, youth training allowance or newstart allowance were payable to the person.

Division 2 - Qualification for and payability of family payment

Subdivision A - Qualification

Qualified person outside Australia for more than 13 weeks

837. (1) Subject to subsection (2), if:

(a) a person who is qualified for family payment for a dependant child leaves Australia; and

(b) the child remains in Australia;

the child continues to be an FP child of the person.

837. (2) The child ceases to be an FP child of the person if:

(a) the person continues to be absent from Australia for more than 13 weeks; and

(b) another person claims, and is qualified for, family payment for the child.

Qualification for individual family payment

838. (1) Subject to subsection (3), a person is qualified for family payment if:

(a) the person has at least one FP child; and

(b) the person is an inhabitant of Australia; and

(c) the person's income for the relevant family payment period does not exceed the person's income ceiling; and

(d) the value of the person's assets does not exceed $559,250.

Note 1: for "inhabitant of Australia" see subsection 23(1).

Note 2: for the income ceiling see Module H of the Family Payment Rate Calculator in section 1069.

Note 3: for the assets that are to be disregarded in valuing a person's assets see section 1118.

Note 4: for the valuation of an asset that is subject to a charge or encumbrance see section 1121.

Note 5: the amount referred to in paragraph (1)(d) is indexed annually in line with CPI increases (see sections 1191 to 1194). The first indexation is to take place on 1 January 1995 (see subsection 1192 (4A)).

Note 6: the assets test may be modified by the hardship provision in section 1132A.

Note 7: there is a separate assets test for additional family payment (see point 1069-D2 of the Family Payment Rate Calculator in section 1069).

838. (2) For the purposes of paragraph (1)(d), the value of the assets of a person is taken to include:

(a) the value of the assets of the person's partner; and

(b) the value of the assets of the person's FP child or FP children.

838. (3) Paragraph (1)(d) does not apply to a person if the person has an exempt FA child.

Note: For "exempt FA child" see subsection 5(1).

838. (4) In this section:

`income', in relation to a person, means the person's taxable income and the person's adjusted fringe benefits value.

Subdivision B - Payability

Family payment not payable in some circumstances

841. Even though a person is qualified for family payment, the payment may not be payable to the person because:

(a) the payment has not commenced to be payable (see sections 842 and 862); or

(b) the person has not provided a tax file number for the person (see section 849) or the person's partner (see section 850); or

(c) another person is receiving family payment for the person's child (see section 848); or

(d) the person's family payment rate would be nil.

Division 2 - Qualification for and payability of parenting allowance

Subdivision A - Qualification for parenting allowance

Qualification for parenting allowance

905. A person is qualified for parenting allowance if the person:

(a) is a member of a couple; and

(b) has at least one parenting allowance child; and

(c) is an Australian resident, or has a qualifying residence exemption for parenting allowance; and

(d) is in Australia, or satisfies the requirements of section 906.

Note 1: See section 4 for whether a person is a member of a couple.

Note 2: For "Australian resident" and "qualifying residence exemption" see section 7.

Qualification for parenting allowance - temporary absences from Australia

906. (1) Subject to subsection (3), for the purposes of paragraph 905(d), a person satisfies the requirements of this section if the person:

(a) is temporarily absent from Australia; and

(b) has not been absent from Australia for more than 13 weeks.

906. (2) For the purposes of subsection (1), in determining if an absence is temporary, regard must be had to the following factors:

(a) the purpose of the absence;

(b) the intended duration of the absence;

(c) the frequency of such absences.

906. (3) If:

(a) a person does not satisfy the requirements of this section:

(i) because the person's absence from Australia is not temporary; or

(ii) because the person has been absent from Australia for more than 13 weeks; or

(iii) because of a previous application of this subsection; and

(b) the person comes to Australia; and

(c) the person leaves Australia again less than 13 weeks later;

the person is taken, for the purposes of paragraph 905(d), not to satisfy the requirements of this section when the person leaves Australia as mentioned in paragraph (c).

Qualification for parenting allowance - assurance of support

907. A person is not qualified for parenting allowance if the Secretary is satisfied that:

(a) an assurance of support is in force in respect of the person (the "assuree"); and

(b) the person who gave the assurance of support is willing and able to provide an adequate level of support to the assuree; and

(c) it would be reasonable for the assuree to accept that support.

Note: For "assurance of support" see subsection 23(1).

Qualification for parenting allowance - unemployment due to industrial action

908. (1) If:

(a) a person has claimed but has not yet received parenting allowance; and

(b) when the claim was lodged, the person was unemployed;

the person is not qualified for parenting allowance unless the Secretary is satisfied that the person's unemployment is not due to the person being, or having been, engaged in industrial action or a series of industrial actions.

908. (2) For the purposes of subsection (1) and without limiting that subsection, a person is taken not to be, or to have been, engaged in industrial action or a series of industrial actions if the Secretary is satisfied that the person's unemployment is due to other people being, or having been, engaged in industrial action or in a series of industrial actions, and that:

(a) if industrial action is still being engaged in:

(i) the people, or some of the people, are members of a trade union that is involved in the industrial action, or have been such members at any time since industrial action started; and

(ii) the person has not been a member of that trade union at any time since industrial action started; or

(b) if industrial action has stopped:

(i) at any time while industrial action was being engaged in, the people, or some of the people, were members of a trade union that was involved in the industrial action; and

(ii) the person was not a member of that trade union at any time while industrial action was being engaged in.

908. (3) Subsection (1) does not prevent a person from being qualified for parenting allowance on a payday that occurs after the relevant industrial action or series of industrial actions has stopped.

Note: For "industrial action", "trade union" and "unemployment" see section 16.

Subdivision B - Payability of parenting allowance

Parenting allowance not payable in some circumstances

909. (1) Even though a person is qualified for parenting allowance, the allowance may not be payable to the person because:

(a) the allowance has not commenced to be payable (see sections 910 and 938); or

(b) the person has not provided a tax file number for the person (see sections 912, 932 and 948) or for the person's partner (see sections 913, 933 and 949); or

(c) another person is receiving parenting allowance in respect of the same child (see section 914); or

(d) the person's partner is receiving parenting allowance (see section 915); or

(e) a social security benefit or a Youth Training Allowance is payable to the person (see section 916); or

(f) the person is receiving a payment under certain educational schemes (see section 917); or

(g) the person is receiving income that is paid by a community or group from funds provided under a Commonwealth funded employment program (see section 918); or

(h) the person is receiving payments under a LEAP program (see section 919); or

(i) the person is subject to a newly arrived resident's waiting period (see section 920); or

(j) the person is subject to an unused annual leave waiting period (see section 923); or

(k) the person is subject to a non-payment period for job search allowance or newstart allowance (see section 926); or

(l) the person has not nominated a bank, credit union or building society account for payment of the allowance (see section 943); or

(m) the person is in gaol (see Part 3.13); or

(n) the person is subject to a compensation preclusion period (see Part 3.14).

909. (2) Subject to subsection (3), a parenting allowance is not payable to a person if the person's parenting allowance rate would be nil.

909. (3) Subsection (2) does not apply to a person if the person's rate is nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a) Part 2.23 of this Act; or

(b) Division 2 of Part VIIA of the Veterans' Entitlements Act."

29. In the proceedings before the Magistrate, the elements of the Social Security offences were identified as follows,

(i) the defendant obtained the payment referred to in the charge;

(ii) the defendant knew she was obtaining the payment;

(iii) the payment was not payable to her in whole or in part;

(iv) At the time she obtained it, the defendant knew that the payment was not payable to her in whole or in part.

30. For the purposes of this appeal, counsel for the appellant conceded that there was prima facie evidence of the first two elements set out above. In order to prove the third element, the prosecution set out to prove that the appellant had made representations which were not true and, as a result, the allowances she applied for were not payable. In particular, the prosecution set out to prove that contrary to her representations to the Department of Social Security, she was actually engaged in the business of Riverside Hot Bake at Riverside Plaza in Queanbeyan, New South Wales.

31. The Magistrate considered the evidence and was satisfied beyond reasonable doubt that the appellant was actually engaged in the running of that business from 24 August 1993 to May 1996. He considered all the evidence and the credibility of the appellant as a witness in the proceedings. He said,

"It is implicit in what I have said that I do not believe Ms Le when she says that the moneys that were paid into her account were either repayments of loans or profits from gambling and apart from her own say so and some evidence from Mr Bui that there were some loan transactions between them, there is no supporting evidence for that whatsoever and given the whole of the evidence before me and the clear untruths that appear in some of the documents that she filled in and even an attempt towards the end to seek insurance as a proprietor of a business to enable her to have income, the evidence is simply overwhelming in support of these offences."

32. It is unnecessary to state the legal principles which apply to the hearing of appeals by appellate courts conducted on the basis of the papers in the lower court. They are set out in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588; Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296; Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472; Walsh v Law Society of NSW [1999] HCA 33; (1999) 73 ALJR 1138.

33. As I have said earlier, it is not a valid criticism of the Magistrate's reasons for judgment that he did not consider the state of the mind of the Secretary as to whether the respective payment was payable in whole or in part. In any event, I accept the submission on behalf of the respondent in this appeal that there was evidence in the form of the documents which form part of exhibit 7 that the payment of the particular benefit was not payable at all because the appellant's allowance rate would be nil. The Magistrate must have been satisfied beyond reasonable doubt about that because of that uncontested evidence and the absence of any cross-examination of the witness called for the prosecution through whom the documents were tendered in evidence. It was not necessary for the prosecution to prove that the appellant was not qualified to obtain the payments. In particular, it was not necessary to show that she had satisfied the Secretary of various matters as under the legislation these were all matters of qualification for allowances rather than payability of the allowances.

34. It seems to me that a proper reading of the fairly complicated provisions are that before a Social Security payment is payable to a person under the Act,

(a) the person must be qualified for the Social Security payment; and

(b) there must be nothing in the Act which makes the Social Security payment not payable to the person, for example, the waiting period provision, a multiple entitlement exclusion provision or a compensation preclusion provision.

35. Section 1347 is not concerned with qualification but with payability. Specific provision is made with respect to payability of each of the allowances the subject of the charges. They are set out above and are as follows,

* Job Search Allowance - s 526;

* Newstart Allowance - s 608;

* Special Benefit - s 732;

* Family Payment - s 841;

* Parenting Allowance - s 909.

36. It is true that an applicant for one of the allowances under the Act has to satisfy the Secretary of certain matters in order to qualify for the allowance. But qualification for the allowance is only part of the exercise in determining whether the allowance is payable to the applicant or not.

37. For these reasons, the evidence before the Magistrate was sufficient to enable him to be satisfied beyond reasonable doubt of the first three elements of each offence.

38. That leaves only proof of the fourth element that at the time she obtained the allowance she knew that the payment was not payable to her in whole or in part. The Magistrate considered all of the evidence on that subject in relation to each of the Social Security offences, including the evidence of witnesses of her active engagement in the Riverside Hot Bake, the banking records evidencing deposits made by her and evidence of her own bank accounts which she had not disclosed other than the one into which the various benefits were paid during the relevant periods and totalling $25,437.05, $18,413.65 and $104,104.65. He considered her explanations for those sums of money and rejected them. There is no basis upon which this court should interfere with the Magistrate's conclusion of proof beyond reasonable doubt in respect of each of the Social Security offences.

39. I turn to the offence of imposing upon the ACT Housing Trust by an untrue representation with a view to obtain a benefit.

40. Section 6 of the Crimes (Offences Against the Government) Act 1989 provides that,

"A person who imposes, or endeavours to impose, upon the Territory or a Territory authority by any untrue representation, made in any manner whatsoever, with a view to obtaining money or any other benefit or advantage is guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years."

41. The case for the prosecution before the Magistrate was that the appellant submitted an ACT Housing Registration for Assistance form dated 7 July 1995 wherein she stated that she had lived in the ACT for all of the previous 12 months, that was an untrue representation made with a view to obtain a benefit. In respect of this offence the Magistrate said,

"In respect of matter number 9772 which is the prosecution relating to an offence under section 6 of the Offences Against the Government Act of 1989, I am satisfied that she made a representation that she lived in the ACT for all of the last 12 months and that that representation was untrue and that she knew it was untrue and that she obtained a benefit thereby and I find that offence established beyond reasonable doubt."

42. It was submitted on behalf of the appellant that the prosecution had failed to establish that the appellant knew of the falsity of the statement on which the charge was based or that the false statement was made with reckless indifference to its truth or falsehood and, as there was no evidence as to the appellant's state of mind at the time she made the representation, the Magistrate should not have been satisfied beyond reasonable doubt.

43. There is no substance in this ground of appeal. The evidence established that as at 7 July 1995 the appellant had in fact resided at 3/38 Isabella Street, Queanbeyan since the beginning of 1995. The inescapable inference was that she made the false statement in the registration for assistance form knowing that it was false with a view to obtaining housing assistance. The appeal against the conviction for the offence against s 6 must be dismissed.

44. The appellant also appealed against the sentence imposed for all offences. It is true that the Magistrate did not articulate all the matters which he took into account on the question of sentence, but it is clear that he did consider all the evidence and the principles set out in R v Purdon (unreported decision of the New South Wales Court of Criminal Appeal delivered 27 March 1997). It is unnecessary to restate those principles. It is sufficient to observe that no error on the part of the Magistrate in imposing the sentences as he did has been shown.

45. Accordingly, I order that the appeal be dismissed and the convictions and sentences be confirmed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gallop.

Associate:

Date: 7 July 2000

Counsel for the appellant: Mr G C Corr with Ms A Collins

Solicitor for the appellant: Sheila Foliaki-Singh & Associates

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 29 June 2000

Date of judgment: 7 July 2000