CDirector of Public Prosecutions v Black
[2022] VCC 51
•31 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00700
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| HAYLEY BLACK |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 31 January 2022 |
CASE MAY BE CITED AS: | CDPP v Black |
MEDIUM NEUTRAL CITATION: | [2022] VCC 51 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth)
Cases Cited:Dickinson v R [2021] VCSA 50
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M. Challen | CDPP |
For the Accused | Ms J. Swiney |
HIS HONOUR:
1Hayley Black, you have pleaded guilty to the following offences which carry the following maximum penalties: Charge 1 is a charge of dishonestly obtain a financial advantage by deception from a Commonwealth entity pursuant to s134.2(1) of the Criminal Code and it carries a maximum penalty of 10 years' imprisonment. Charge 2 is a charge of dishonestly cause a loss to a Commonwealth entity pursuant to s135.1(5) of the Criminal Code and it carries a maximum penalty of 10 years' imprisonment.
Circumstances of Offending
2The Crown tendered a summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
3You have been receiving a Disability Support Pension since 2009, and during the offending period, social security payments were made into your Commonwealth Bank accounts.
Charge 1
4On 15 August 2012, your Disability Support Pension was suspended after you informed the Department of Human Services (‘DHS’) that you were working more than 30 hours per week.
5On 29 January 2013, you contacted DHS by phone and falsely represented to them that you were no longer working. At the time you provided this information, you were employed by the Royal Melbourne Hospital. You had been recently hospitalised, but were released on 29 January 2013, and you returned to work shortly after that date.
6As a result of this representation, your Disability Support Pension was reinstated and you were no longer required to report your income to the Department in order to continue to receive benefits.
7By reason of your positive false declaration, you received payments that you were not otherwise entitled to receive between 29 January 2013 and 14 June 2018. Despite your ongoing legal obligation to advise the Department of any changes to the employment/income information, you failed to do this at any time during the period of the charge.
8On 3 July 2014, you met with a Centrelink customer service officer who reminded you of the 30-hour work limit rule, and the requirement to notify Centrelink or DHS if you returned to work. It appears that this meeting occurred at, and during, a time when you were hospitalised for your mental health conditions.
9During the period of 11 June 2012 to 10 June 2018, you were employed on a full-time basis as a Patient Services Assistant with the Royal Melbourne Hospital. During the period of offending, you earned $308,777.01 gross income (as advised by the CDPP in an email dated 15 December 2021).
Charge 2
10From ending employment at the Royal Melbourne Hospital and commencing employment with Livebetter Services Ltd, you were entitled to, and received, the Disability Support Pension.
11On 7 January 2019, you commenced employment with Livebetter Services Ltd. You failed to declare your income from this employment to the Department whilst in receipt of a Disability Support Pension from 24 January 2018 through to 8 August 2019, and therefore caused a loss to the Department.
12During this period, you were employed on a casual basis as a Disability Support Worker with Livebetter Services Ltd, and earned $28,490.96 gross income (which is an average of $1,899.40 gross income per fortnight).
Reporting Obligations and Overpayment
13During the period of offending relevant to Charge 1, you received $121,602.51 in social security benefits when you were only eligible to receive $12,347.13. The overpayment relevant to Charge 1 was $109,255.38.
14During the period of offending relevant to Charge 2, you received $13,918.50 in social security benefits when you were only eligible to receive $2,783.73. The overpayment relevant to Charge 2 was $11,134.77.
15The total overpayment obtained by you was $120,390.15.
16As part of the investigation, the Department wrote to you on 28 October 2019 inviting you to participate in a formal interview. There was no response to the letter and you were not interviewed.
17You have made regular repayments since the detection of your offending. Centrelink suspended the requirement for repayments to be made during the most recent lockdown, and so your last repayment was made in August 2021. The CDPP calculates that you have paid back over $11,000 relating to this offending.
18I consider the fact that you have made repayments on a continuous basis to be a demonstration of your remorse for your offending.
Objective Gravity and Moral Culpability
19The CDPP submits that your offending on Charge 1 should be characterised as serious; whilst your offending on Charge 2 should be characterised as moderately serious.
20In my assessment, the seriousness of your offending on Charge 1 derives from the fact that you consciously and deliberately took steps to deceive the Department into reinstating payments to you at a time when you knew you were not entitled to such payments. As a consequence of your actions, you received a large amount of money to which you knew you were not entitled; and you received those payments over a very long period of time.
21In the course of the plea made on your behalf, your counsel submitted to the effect that you had been in hospital and you were uncertain as to whether you would return to work. However, I find that your plea of guilty to this charge and the fact that you returned to work within a very short period of time (and in fact, in the same pay cycle as the period in which the call was made) indicate that your actions were deliberate and dishonest.
22I conclude that your offending on Charge 2 is less serious as it is constituted by omitting to inform the Department of your circumstances. Moreover, the offending was committed over a much shorter period of time and involved you receiving far less money by dishonest means.
23The cases to which I have been referred all point to the fact that the dominant sentencing principle to be considered and applied in cases of social security fraud is general deterrence. Usually, cases of sustained and deliberate cheating of the social welfare system attract periods of imprisonment; even after taking into account the circumstances of the offender.
24I will leave the assessment of your moral culpability and the factors to which I must have regard under s16A(2) until after I have considered your personal circumstances and the mental health evidence tendered on your behalf.
Personal History
25You were born on 23 May 1990 and you are currently 31 years old.
26You are the youngest of four children and have three older brothers. Your parents separated when you were about nine years old and which you stated ‘wasn’t too bad’ and both remarried. You report an ‘okay’ relationship with your parents and have had limited contact with your brothers.
27You grew up in the Yarra Valley region and attended Lilydale West and Chirnside Park Primary Schools. You describe yourself as an ‘average’ student with no social or behavioural problems until about Grade 6, when you ‘turned feral... flipped out.. [and] became argumentative’. This was likely linked to experiences at home.
28Your home life was ‘up and down’. Your father was not around much, as he was often at work and having an affair. Your mother ‘didn’t know how to be a mum and therefore [you] were left to [your] own devices’. You and your brothers fought and ‘were not an emotionally close family’.
29You were sexually and physically abused by your mother’s partner for about a year when you were around 10 years old. You tried to tell your mother but ‘she didn’t want to hear’ it.
30By the age of 13, you had moved out of home with the support of Anglicare and lived ‘on and off’ with a friend and her family. You report being sexually abused by the father of your friend when you were between the ages of 13 and 17.
31You attended Lilydale High School until the completion of Year 10 and stated that you ‘went to socialise and not [to] do work’.
32During your teenage and early adult years, you engaged in self-harm and underwent a number of psychiatric admissions at the Maroondah Hospital where you were diagnosed with Borderline Personality Disorder and first underwent Electro Convulsive Therapy treatment (‘ECT’). You were assisted in applying for the Disability Support Pension by a social worker at the Maroondah Hospital. You were diagnosed with Bipolar Mood Disorder in 2014.
33You had a ‘lot of Panadol overdoses as a teenager’ and earlier in 2021 you tried to hang yourself. You have a history of self-harm, have felt suicidal many times, and you have made numerous attempts to take your own life.
34As a teenager, you smoked cannabis daily and used speed most weekends. You have also tried mushrooms, Ice and MDMA, although you state that you have not used drugs for a long time. You used to drink alcohol ‘a lot’ during high school but it was not ‘an addiction', and state that you have not drunk alcohol in about eight years.
35You have mostly had employment since leaving school, including café jobs, as an in-care technician with the Royal Melbourne Hospital and as I say, as a Disability Support Worker with the Livebetter Organisation. You currently work as a residential disability support worker.
36You have never married and have no dependents. You are currently in a relationship with Tamara Goldsmith. You both see Ms Goldsmith’s three daughters on a fortnightly basis, although there is Department involvement to facilitate greater contact with them.
37I received character references from Tamara Goldsmith, your partner, Emma-Kate Charlton, and a letter on behalf of your employer, and from your counsellor Cathie Graham, a social worker. They speak of your mental health issues, the impact these proceedings have had on your mental health, and your remorse.
38You are currently prescribed Lithium (mood stabiliser), Zoloft (anti-depressant) Clonazepam (anxiolytic), Prazosin (anti-nightmare medication), Zopiclone (sleeping medication) and rarely Chlorpromazine (major tranquiliser).
39I was told by your counsel Ms Swiney on the further plea on 15 December 2021 that your most recent courses of ECT were undertaken in March and May 2021.
Psychological Material
Rykie Smith
40You have been seeing Ms Rykie Smith, a psychotherapist / Arts therapist, regularly since 13 April 2021. In her letter dated 20 August 2021, Ms Smith states that you suffer from ‘one of the more severe cases of complex trauma and symptoms of PTSD and anxiety that [she has] treated’. Your symptoms involve alterations to your cognitive processes, including problems with memory, poor concentration and attention, and impaired decision-making and judgment. Ms Smith notes that you have been making ‘promising progress’, which she believes will continue as you work together.
Carla Lechner
41You were assessed by Ms Carla Lechner, clinical psychologist, on 23 August 2021. In her report dated 27 August 2021, Ms Lechner states that you presented ‘with a long history of mental health problems arising from a childhood exposure to Complex Developmental Trauma that has resulted in symptoms of Complex Post-Traumatic Stress Disorder… [and] Bipolar Mood Disorder…’
42You advised Ms Lechner that, upon informing Centrelink that you were back at work, you were told that you had ‘1000 work credits’ and no longer needed to report regularly. In retrospect, you believe that you should have ‘questioned it more, pushed harder (for clarification)’. Ms Lechner states that you are ‘immensely ashamed of [your] behaviour’ and you have been on a repayment plan for a couple of years. You no longer receive the disability support pension. You continue to struggle with a serious psychiatric condition; you attempted suicide earlier in 2021 and were, as I say, again treated with ECT.
43Ms Lechner opines that an immediate term of imprisonment would be most detrimental to your mental health and she anticipates a further decline in your mood with possible suicidal behaviours. Access to treatment such as ECT would be more difficult to facilitate in custody, especially during these current COVID-19 restrictions.
44Ms Lechner stated that you fulfil the criteria of a diagnosis of Major Depressive Disorder, being the ‘down’ cycle of your Bipolar Mood Disorder. You told Ms Lechner that a ‘high’ in your mood is characterised by ‘a lot of energy, racing thought’, wanting to change careers, getting into debt and feeling that you are invincible.
45Ms Lechner opines that, in addition to the sexual abuse you experienced as a child, you were also subjected to a degree of emotional neglect by your mother. She states that this ‘exposure to Complex Developmental Trauma has given rise to symptoms of Complex PTSD such as interpersonal mistrust, chronically low self-esteem, hyper-vigilance to situations of conflict and a poor capacity for behavioural and emotional regulation.’
46Ms Lechner states that, without testing, that you impressed as ‘average or low average’ intelligence and feel that you have ‘no control over the ‘highs’ and lows’ of [your] mood’.
47You completed the Kessler Psychological Distress Scale with Ms Lechner, and achieved a score of 40 which is indicative of ‘likely to be severely psychologically distressed’.
48Ms Lechner administered the Beck Depression Inventory, to which you positively endorsed multiple items. These included: sleep disturbance, loss of energy and fatigue; irritability, agitation, indecisiveness and loss of concentration; loss of interest and pleasure; a desire but inability to cry; feelings of sadness, failure, pessimism, guilt, punishment, self-dislike, worthlessness and self -criticalness.
49Ms Lechner administered The Beck Anxiety Inventory, which resulted in a score in the ‘severe’ range.
50Ms Lechner also applied the International Trauma Questionnaire (2018), which indicated the presence of symptoms of both Post-Traumatic Stress Disorder and Complex Post-Traumatic Stress Disorder.
51Ms Lechner opines that you present with positive rehabilitation prospects, you are making modest restitution (it appropriate in your financial circumstances) and are currently under both psychiatric and therapeutic care, all of which is likely to be compromised within a custodial setting.
52She further opines that you would benefit most from continued engagement with your current treatment services
53On the further plea, your counsel Ms Swiney referred me in particular to point 4 of Ms Lechner’s Summary and Opinion, where Ms Lechner concluded:
In respect of her offending, Ms. Black expressed shame and regret for her actions, stating that in retrospect she “should have pushed more” regarding clarification of her position. She stated that when life becomes too difficult, she retreats into “avoidance”, a lifelong coping mechanism. I further note that Ms. Black has suffered periods of quite debilitating mental health problems that would no doubt have undermined her ability for judgement, problem-solving and decision-making. Ms. Black has no prior history of offending and does not espouse anti-social attitudes or behaviours that would suggest a deliberate and calculated desire to be deceptive.
Dr Glowinski Report
54At the first hearing in September 2021, I ordered a psychiatric report from Forensicare. I received the report of Dr Remy Glowinski. In his report, Dr Glowinski concluded inter alia (at [85], [86]):
Ms Black described the offending in a manner which suggested passive avoidance rather than premeditated action. She described difficulty opening official correspondence or proactively contacting Centrelink. This behaviour is in keeping with her described pattern of avoiding conflict due to high levels of anxiety. I note that her previous long-term therapist observed similar behaviour from Ms Black. Avoidance behaviours of this severity are a common behavioural manifestation after adverse childhood experiences and in the context of complex PTSD.
I also note that Ms Black experienced severe mood episodes intermittently throughout the period of offending. When depressed she was almost certainly dysfunctional and incapable of dealing with financial matters, including contacting Centrelink. Ms Black also described spending excessive amounts of money when elevated. This suggests a potential causal connection between her bipolar disorder and the offending.
55I accept that the effect of the mental health reports provided on your behalf to be that your mental health issues made it difficult for you to face up to, and redress your deceptive conduct. However, as it became apparent in the further submissions made before me on 15 December 2021, your mental health issues do not explain the active and deliberately dishonest nature of your conduct which is crucial to your plea of guilty to Charge 1.
56Moreover, your plea of guilty stands in conflict with what you told Ms Lechner about your understanding of the operation of the credit system.
57Mr Challen for the CDPP submits that your offending on Charge 1 (in particular) was a crime of greed: you moved money between accounts and lived constantly beyond your means. In the end, although you were ably represented throughout the hearings by Ms Swiney, your counsel was unable to point to factors in your mental health that explained your conduct on Charge 1, and did not submit that your sustained offending was essentially a crime of need. I accept that your mental health issues may in part explain your inability to regulate your lifestyle and to control your overspending, but I am still left with the impression that your offending was largely motivated by greed.
58In my view, however, both Ms Lechner and Dr Glowinski’s reports provide insight and some explanation for your offending on Charge 2 such as to mitigate the sentence I impose upon you for that offending.
59In this way, I consider that your moral culpability for your offending on Charge 1 is not particularly reduced by your mental health issues. As such, the principle of deterrence remains the dominant sentencing factor. The principle of deterrence should however be moderated in my consideration of the appropriate sentence on Charge 2.
60Ms Swiney made the following submissions on your behalf:
a.The offending is serious in that it was protracted and the overpayment was a considerable sum of money;
b. There was an early plea of guilty at committal mention;
c. You have been repaying the debt on a regular basis;
d.Your shame and remorse are reflected in the psychological and medical material and character references;
e.Your mental health issues are relevant to sentencing - that is, the Complex Post-Traumatic Stress Disorder and Bipolar Mood Disorder;
f.She submitted you were sexually abused by your mother’s partner and friend’s father when you were a child and teenager;
g.Specific and general deterrence and denunciation are relevant to the sentencing considerations;
h. Ordinarily, offending such as this warrants a term of imprisonment;
i.She submitted that in considering your prospects for rehabilitation I should take into account that you have revealed the offending and the context of the offending to your partner and counsellors, and you have been forced to attend to these matters, including by making repayments;
j.Next, she submitted that you have supportive and protective factors, such as a stable relationship, you are proactive in attending to your mental health, and your supportive, long-term counselling relationship with your employer; and,
k.Ms Swiney submitted that Verdins principles 3 (general deterrence and denunciation have less weight) and 4 (prison will be extremely burdensome) are relevant.
61In my view, your prospects for your rehabilitation are good. You have no prior convictions, and you have good supportive and protective factors in place; you have a good work record and you constantly engage with professionals to address your mental health issues. I consider that your plea of guilty which was entered at the earliest time and your efforts to make repayments of the debt are true indications that you are remorseful for your offending. These all contribute to my favourable assessment of your prospects for your rehabilitation.
62Mr Challen on behalf of the CDPP made the following submissions:
a.An immediate custodial sentence is the only appropriate disposition, as imprisonment is ‘ordinarily likely to be required’ unless there are ‘exceptional circumstances’.[1]
[1]Referring to Holdsworth QCA No 94 of 1993; Kovacevic v Mills (2000) 76 SASR 404; Ralph v Nawrojee [2003] WASCA 5; DPP v Alateras [2004] VSCA 214.
b.The offending on Charge 1 is serious, as reflected by the maximum penalty of 10 years' imprisonment. The offending on Charge 2 is moderately serious;
c. He submitted that general principles of totality, parity and consistency are relevant when calculating federal sentences;[2]
[2]Hili v The Queen (2010) 242 CLR 520; Jones v The Queen [2010] HCA 45.
d.The pre-eminent sentencing consideration in cases of social security fraud is general deterrence.[3]
[3]R v Alimic [2006] VSCA 273 at [26] (Nettle JA) citing DPP (Cth) v Milne [2001] VSCA 93 at [12]-[13]; Ralph v Nawrojee [2003] WASCA 5 at [25]-[27].
e.Appellate courts have stated that a sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate cheating of the social welfare system, even if the fraud is based on a perceived need.[4] If the fraud is based on greed, the custodial sentence will generally be longer;[5]
[4]R v Milne [2001] VSCA 93 at [13]; compare R v Rossi (1988) 4 WAR 463 at 467; R v Cameron (SACCA, 19 July 1993, unreported) at 4-5; R v Purdon (NSW CCA, 27 March 1997, unreported); Kovacevic v Mills (2000) 76 SASR 404 at [37]-[45]; Hrasky v Boyd (2000) 9 Tas R 144 at [28]; R v Howe [2000] NSWCCA 405 at [13]-[14]; R v Aller [2004] NSWCCA 378 at [7]-[10]; R v Hurst [2005] QCA 25; McGuiness v R [2008] NSWCCA 80 at [44]; De Faria v Western Australia [2013] WASCA 116 at [159]; Zaky v R [2015] NSWCCA 161 at [49]
[5]R v Purdon (NSW CCA, 27 March 1997, unreported) at 7-8; approved in Ivanovic v R [2009] NSWCCA 28 at [11]-[13]. Compare R v Grice [2006] QCA 326.
f. National consistency is required in the application of the relevant principles;[6]
[6]Hrasky v Boyd (2000) 9 Tas R 144 at [13]-[17]; Ralph v Nawrojee [2003] WASCA 5 at [34].
g.You imposed a fraud of over $120,000 on taxpayers who shoulder the heavy burden of providing funds for the social security system to operate;
h. The CDPP agrees that you have made repayments;
i.Your plea of guilty at committal mention is a mitigating factor for its utilitarian value, even in the absence of remorse or contrition, which I do find you do have, or any further evidence of a willingness to facilitate the course of justice. I do find that there was remorse and contrition, and that the plea not only has utilitarian benefit, but facilitates the course of justice;
j.The Crown submits that you have no prior convictions, but, given the length of time of the offending and the nature of the offending, the Crown submits that there is a need for specific deterrence;
k.The Crown submits that your lack of prior convictions carries less weight, as it is common that offenders in this type of crime have no prior criminal history and are otherwise of good character;
l.It was submitted that your motivation for your offending was one of greed rather than need and that I should view this as an aggravating factor;
m. Next, penultimately, the Crown submitted that there has not been a significant delay in the prosecution of this matter;
n.And finally, I was provided with a series of comparative sentences in the annexure to the Crown's written submissions.[7]
[7] Dickinson v R [2021] VCSA 50; Yarak v R [2008] NSWCCA 298; Ord v R (2008) 186 A Crim R 475; Johnsson v R [2007] NSWCCA 192; R v Thomson [2009] SASC 237; R v Buggy [2006] ACTCA 20.
63The comparative cases provided to me all emphasise that offending of this nature will ordinarily be met by a period of imprisonment and release on a recognizance release order. The Crown urges that I adopt such a course in this case.
64I consider that a period of imprisonment with a release on an recognizance release order is the appropriate sentence to be imposed in this case. Where the difference between the case lies is in the lengths of imprisonment to be immediately served before release on the RRO. That is a critical consideration in this case. Ms Swiney submits that I should order your immediate release, that is forthwith release without the need for you to serve a period of immediate imprisonment. The Crown submits that an immediate period of imprisonment ought to be imposed.
65In the end, I must be wary of being too greatly influenced by sentences imposed in other cases. For example, in the case of Dickinson[8] which was provided to me, this is a recent appeal from a sentence imposed in this court for a relatively similar amount of money. Yet, on a close reading, there are a number of differences between the circumstances of your offending and in that case. I must weigh all the circumstances of your case and arrive at an appropriate sentence that meets the sentencing principles but balances the factors personal to you so far as I may take them into account.
[8]Dickinson v R [2021] VCSA 50.
66I have also had regard to the matters set out in s16A(2) of the Crimes Act1914.
67In the end, Ms Black, I have decided that you must serve a period of immediate imprisonment before you are released on an RRO. Nevertheless, I have reduced the overall period of imprisonment and, when compared to the other cases provided to me, I have decided upon a shorter period of immediate imprisonment before release. In my view, your sentence may be justifiably mitigated by the overall burden that your mental health issues will place on you when compared to the general prison population. However, the burden of your mental health issues may only lead to a relatively modest reduction in your sentence. I must also take into account the other factors personal to you and to which I have already referred in the course of these remarks and these should operate to mitigate the sentence I impose upon you.
68Accordingly, the sentences I impose are as follows. On Charge 1, you are convicted and sentenced to a term of 27 months' imprisonment. That term of imprisonment commences today. On Charge 2, you are convicted and sentenced to two months' imprisonment. That sentence commences today. I order that you serve a period of nine months before you are released on a recognizance release order in the sum of $1,000. You are to be of good behaviour for a period of three years. There is no presentence detention. Mr Challen, I will make the reparation order as sought.
69I take it, I'm sorry, Mr Instructor, is there any opposition to the order for reparation?
70MR CHALLEN: No, no there's not, Your Honour.
71HIS HONOUR: Thank you. Now, I understand the RRO has now been signed.
72MR CHALLEN: Yes, that's correct, Your Honour.
73HIS HONOUR: All right, thank you for your assistance in that matter. Ms Black, I've previously explained the effect of the order to you, but I'll just reiterate it. So it's a term of 27 months' imprisonment on the first charge, two months on the second charge. Those periods run concurrently. That is, they run together. They both commence today. So, the total effective sentence is one of 27 months, with you to go into custody now and release after a period of nine months. The amount of $1,000 is not immediately payable. It is only payable if, after you are released, you are not of good behaviour for the period of three years, in which case you would be brought back before me for resentence and sentenced to the balance of the term of the 27 months, to be served. Mr Challen, from your perspective, is there anything else I need to say, or any other orders to be made?
74MR CHALLEN: No, thank you, Your Honour. I understand that you've signed the reparation order?
75HIS HONOUR: I have signed the reparation order.
76MR CHALLEN: If a copy of that could be provided to my instructor, that is all that needs to happens then.
77HIS HONOUR: All right then and of course, Ms Black, that means that I've made an official order for you to repay the balance of just over $109,000. I think it's - what is it, a hundred and nine - nine - - -
78MR CHALLEN: A hundred and nine and forty-three and forty-seven cents.
79HIS HONOUR: Yes, so that order has also been made. All right, thank you for your considerable assistance in this matter, Mr Challen. Thank you, Mr Instructor, for your assistance in the matter. I'm afraid, Ms Black, that means that you must now go into custody. So if the court security officers can make the arrangements for you to go into custody now. I'll adjourn now.
80MR CHALLEN: As Your Honour pleases.
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