CDirector of Public Prosecutions v Crough

[2023] VCC 2439

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00869

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE CROUGH

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2023
DATE OF SENTENCE:	21 December 2023
CASE MAY BE CITED AS:	CDPP v Crough
MEDIUM NEUTRAL CITATION:	[2023] VCC 2439

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Guilty Plea – dishonestly obtaining a financial advantage by deception from a Commonwealth entity

Legislation Cited:      Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen 249 CLR 571; DPP v Adams [2017] VCC 662; DPP v Dattilo [2016] VCC 1617

Sentence:Total effective sentence is three years and six months. Non-parole period two years three months

S6AAA - five years' imprisonment with a non-parole period of three years six months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr E.S. Dober	Commonwealth Director of Public Prosecutions
For the Accused	Ms B. Myers	James Dowsley & Associates

HER HONOUR:

(a)  the nature and circumstances of the offence

1Blake Crough, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, and two charges of attempting to do so.

2The prosecution filed a detailed summary of the facts founding these charges.  I have had regard to all of the matters in that document but will give a shortened summary now for these sentencing reasons. 

Charges 1 and 2

3Charges 1 and 2 related to 17 individual income tax returns which you filed.  These tax returns purported to cover tax periods between 2005 and 2018.  From the 17 income tax returns filed, payments were made to you on three, totalling $34,988.95.  On the remaining 14 returns the payments which could have been made, if your fraud had not been discovered, amounted to $337,869.03.

4You used three methods to file these income tax returns.  First, using an online tax agent called Etax; second, posting a hard copy, third, using the Australian Taxation Office tax portal via your MyGov account.

5Each income tax return contained false information.  You reported a higher than expected income and in some you nominated employers for whom you had never worked or had not worked in the relevant period.  It appears that in some instances you found the name and relevant details of the employer you nominated by online searches.

6The summary of prosecution opening sets out at pp 5 to 6 a table of these income tax returns which you lodged, the amount which was purportedly payable to you, and the amount paid in the three instances where the refund was paid out.  The first three income tax returns were lodged via the Etax online tax agent on 11 and 12 March 2020. The applicable refunds were transferred by the ATO to the Etax trust account, but later returned by that business to the ATO. 

7The next three income tax returns were lodged in the first part of April, online, and it was these where the refund was paid into your account.  Thereafter three income tax returns were lodged online on 21 May, five were sent by the post the next day, that is 22 April, and the final three were sent by post on 24 April 2020. 

8Charge 1 commenced on 11 March 2020 and ended on 24 April 2020, being the first and last filing date of the relevant income tax returns.  Charge 2 commenced on 9 April 2020, the date the first income tax return was filed, and ended on 21  April 2020 when the final payment was made by the ATO on those income tax returns.

Charge 3

9Charge 3 covers numerous acts by you seeking to obtain Job Keeper payments, between 3 March and 3 June 2020.

10The Job Keeper wage subsidy program was commenced by the Federal government on 30 March 2020, in response to the pandemic.  It was payable to employers or sole traders as a wage subsidy payment, with a maximum payment of $1,500 per fortnight, per eligible employee, for a maximum of 26 weeks.

11Whilst you were claiming that payment, you were not running a business nor were you self-employed. 

Preliminary Steps

12Ten years before this offending you had been issued an ABN.  On 20 April 2020 the business was registered for GST, backdated to 2016.

13On 30 April 2020 a Job Keeper enrolment form was lodged with the ATO, indicating an intention to apply for Job Keeper.  The same day your ABN had a business name registered, being 'Party Frenzees'.  This business was registered for a PAYGW (pay as you go withholding) role form 1 April 2020, and the ATO received two sets of payroll reports holding out that Party Frenzees had 39 employees.  Comparison of the details of the purported employees with ATO records showed that 37 of them could not be matched to ATO records and they did not have a tax file number.

Offending

14The charge commenced on 3 May 2020.  On that day you lodged a Job Keeper application for Party Frenzees for the month of April.  That application set out a wholly fictitious estimated financial situation for Party Frenzees, including that you paid yourself and your 39 employees for April 2020.  There were inaccuracies in this application so the ATO decided to conduct a compliance review.

15On 11 May 2020 you filed 17 business activity statements for periods between 2016 and 2020.  These were also fraudulent.  I note that whilst the figures in the BAS indicated that you were entitled to a refund, this is not charged as an attempt to obtain such a refund.  Rather, the prosecution say that these business activity statements were used by you in support of your attempts to get the Job Keeper payments.

16Discrepancies between the business activity statements and your income tax returns, as well as a lack of documentation, led to a further compliance review by the ATO of these business activity statements.  As part of that review an ATO compliance officer spoke to you by phone on 15 May 2020.  You said in that call that you were running an events company.  The ATO requested a range of documents which you did not supply.

17Another ATO compliance officer contacted you by phone and email on 16 May 2020, requesting further documentation regarding the Job Keeper application.  On 19 May you made various excuses to the ATO.  You were advised to contact the business help line for assistance with the BAS documentation and asked to provide other documents, including bank statements and payroll files for the period between July 2019 and March 2020.

18That same day you sent an email to the ATO attaching what appeared to be a Bank of Melbourne transaction statement and 11 Payroll Employee Summary reports, said to be wages paid to employees of Party Frenzees.  All of these documents were fake, having been created by you or someone else in furtherance of this offence.

19Between 20 and 26 May 2020 numerous emails were sent from your email account to the ATO, asking about the progress of the Job Keeper claim.  The tone of the extracts set out in the opening range from plaintive to hectoring. 

20In late May 2020 the ATO became aware that the bank statements you had provided related to an account which did not exist at the time and the details you had provided were false.  You were advised on 27 May 2020 that Party Frenzees was not eligible for Job Keeper payments. 

21In parallel, the BAS compliance review had continued and on 3 June 2020, the last day of the charge, you provided documentation requested in respect to those fraudulent business activity statements.

22You responded to a later enquiry by the ATO about the BAS documentation saying, amongst other things, you 'simply [didn’t] care anymore' and you were 'over it.'

23If your attempts to get the Job Keeper payments had been successful, you would have received $120,000 to which you were not entitled.

Investigation and Interviews

24The investigation of your lodgements was referred to the AFP in 2020, regarding suspected fraud of the Job Keeper scheme.  You were not arrested or interviewed until February 2023.  Two interviews were conducted.[1]  You admitted it had been 'a complete deception from start to finish'.[2]  You said it was quite easy to fix the figures in the documents lodged, to get a refund.[3]  In the first, shorter interview, you said that the idea of the Job Keeper claims came from a person you knew, Mr Panwar, who was an accountant.  You said that he started an ABN in your name, which is not correct, and did all the paperwork side of things, as you did not know anything about tax and you had not known the full extent of the claims.[4] 

[1]Interview #1:  28 February 2023, 9.43 am at Offender’s home; Interview #2:  28 February 2023, 12.07 pm at AFP office.

[2]Interview #2, A41

[3]Interview #2, A42

[4]Interview #1

25In the second interview you expanded on that. You said he showed you how to lodge forms online and you started 'playing around with it and thinking the things that could be done in that system.' You said it was not his fault however, although you did not really understand the details, [5] and that once you started, you learnt the process as you went along.[6]

[5]Interview #2, A 43

[6]Interview #2, A146

26You also said:[7]

‘… it’s pretty much like a trust – the honour system. Yeah, a trust system, you know what I mean? Like, there’s data that goes in there, but then obviously it’s like everybody plays their part, and if everybody rips the system off, then the country would just go to shit obviously.’

[7]Interview #2, A 57

27I take from this that you do and did understand that your offending had the capacity to harm the revenue, and thus the country. 

Personal Circumstances

28Much of the history that I was provided came from Dr Hughes’ report and your instructions to counsel.  I note that Paragraph 14 of Dr Hughes’ first report seems to be a compendious overview of what he was told by you.  The history I have considered was set out by him in more detail in his report, with reference to collateral or other sources where available. I have also had regard to your mother’s letter and the information given to me by counsel, on instructions from you.  As I raised at the plea hearing, I have been cautious in my approach to the information you have given.

29It frequently happens that the court is informed about an accused person’s history by that person’s statements and descriptions to their lawyers and sometimes a psychologist or other assessor.  I am mindful that many things happen to children and adults which cannot be proved or supported by collateral material.  A sensible and open-minded approach is necessary for fairness and to ensure that the processes of the court run reasonably efficiently.  This approach does not, however, reduce the requirement that a factor in mitigation needs to be established on balance of probabilities and an aggravating factor beyond reasonable doubt. 

30In addressing your history and the matters raised in mitigation, I have taken account of the consistency or otherwise of your accounts, the assessment by Dr Hughes of your presentation, and supporting information where available.

Family History

31You are now 35 years old and were 31 at the time of these offences.  You were born in northern New South Wales, the middle of three children.  You have an older sister and a younger brother.

32You said that you felt loved by your parents but also that your father would physically mistreat you and whip you with electrical cords when you misbehaved.  You said your mother was loving and caring but could quickly switch to being dismissive and denigrating, without warning. 

33You describe your father’s behaviour as twisted, manipulative, and narcissistic, to all of the family when you were a child.  You became aware he was a gambling addict and were exposed to his anti-social views about work and honesty, such as exaggerating a work injury to get additional or un-needed medications.  You reported that your father would lie regularly, seeking sympathy and attention, for example saying he had cancer. 

34You were an average student scholastically and report significant behavioural issues, with at least six suspensions including one where you threatened to blow up the lab at school.  You told Dr Hughes you were preoccupied with death and dying and struggled to conform. You completed Year 10 but were then expelled for misconduct towards teachers.  You report having few friends and changing schools frequently.[8]  I note that your counsel told me that you left school at the end of Year 8 and completed Years 9 and 10 at home.[9]

[8]Hughes [23]-[24]

[9]Defence Outline of Submissions [17]

35You reported that your mother told you when you were ‘very young’ that her family had experienced extensive sexual abuse.  You state that she was fostered to her aunt at an early stage and thereafter exposed to domestic and sexual abuse.  You also stated that you came across your older sister being raped when you were 10 years old. Neither statement is supported but it is not impossible that these things happened.

36Your parents separated when you were 13 or 15.[10]  You say that prior to your mother leaving your father would try to undermine you and your siblings trust in her by telling you that she did not love you and was going to abandon you.[11]  After your mother did leave, you and your siblings remained living with your father.[12]  You told your counsel that your father made it difficult for you to see your mother, and tried to run you over once when he was taking you to see your mother.[13]

[10]Hughes [13]; cf Defence Outline of Submissions [7]

[11]Hughes [20]

[12]Hughes [21]

[13]Defence Outline of Submissions [7]

37You told Dr Hughes that it was around this time, when you were 15, that you started experimenting with cannabis.[14]  On the other hand you also told Dr Hughes that you started experimenting with substance misuse around the age of 12, and smoked constantly until you were 20.[15]  You said that your father, when he found out, offered you drugs from his collection of prescription medication, commencing a history of polysubstance drug abuse.  You said that when your mother found out she arranged for you to live with her.[16]  Your mother’s reference indicates that this occurred around 19 years ago. Thus when you were around 16, you started using drugs and associating with other drug users.

[14]Hughes [21]

[15]Hughes [44]

[16]Hughes [21]; Defence Outline of Submissions [23]

38You also told Dr Hughes that after you had been expelled you apparently moved back and forth between your parents.[17]  You told your counsel that your mother provided a more stable home and that there were less rules and more fun at your father’s house.  You said that your father encouraged you to take drugs, but your mother helped you get into counselling and got you medical support.[18]

[17]Hughes [24]

[18]Defence Outline of Submissions [8]

39You have had a variety of jobs, mainly manual labouring. 

40You said that when you were around 17 you learned of an allegation that your father had sexually abused your niece who was either three or four years old, and thereafter you had no meaningful relationship or contact with your father.[19] 

[19]Defence Outline of Submissions [9]; Hughes [22]

41Your counsel told me that you believe that you were sexually abused by your father, noting one memory described by you.  Dr Hughes writes:

'When I spoke to Mr Crough’s mother, she referenced that both Mr Crough and his sister have alluded to instances where they may have been sexually abused by their father in their early childhood as well.'

42I cannot make a finding as to whether this happened or not and note that even if I were to accept this, the impact on your sentence would be limited.

43You remain in telephone contact with your siblings and you see your mother from time to time as well as speaking to her often.  You report having few friends here in Victoria, although you had a cat to care for.

44Dr Hughes described you as articulate and intelligent, and well informed about some topics discussed.[20]  Dr Hughes considered that you have appropriate insight into your situation, and a decent understanding of your mental health and substance abuse.  I was told that you are teaching yourself Russian and enjoy reading on a range of topics.

[20]Hughes [61] 

Mental Health

45You reported to Dr Hughes that you began showing signs of OCD when you were five.  Dr Hughes writes:[21]

'Mr Crough went on to detail how his father “thought there was something wrong with me” and started lacing his food with these aforementioned narcotics in an effort to tranquilise him and dull his behaviour. When I spoke to Mr Crough’s mother, she corroborated that this was indeed a suspicion of hers as well.'

[21]Hughes report 1, [19]

46I do not accept that this history of being given drugs by your father is sufficiently proved.  The allegation is bizarre and your mother’s 'corroboration', to use Dr Hughes’ word, is a statement of no more than a suspicion. 

47Whilst the history given by you to Dr Hughes is extreme, particularly the description of the voices you heard directing you to compulsive behaviour, your mother did support the presence of these symptoms for many years.[22]  You told Dr Hughes that the intrusive directive thoughts do still present to you, but that you can resist acting on them.[23]  I do not accept that the history given at Paragraph 33 of Dr Hughes’ report of a hallucination at age five or six was caused by drugs given to you by your father, as you speculated.

[22]Hughes [29]-[30]

[23]Hughes [31]

48Furthermore, the history at Paragraph 34 of Dr Hughes report of jumping from a car when you were around 15 and being seen by a psychiatrist for bipolar, schizophrenia or drug induced psychosis, is unsupported by other material.  You reported to him that during your teens you self-harmed in the context of stressful life events, but that you had never attempted suicide despite thinking about it over the past few years.

49You told Dr Hughes that you had been diagnosed with bipolar whilst in prison and been prescribed medication that you found helpful, although you did not take that medication consistently when in the community.[24]  Dr Hughes writes:[25]

'He has been informed over the years that he has a diagnosis of bipolar affective disorder, however, his behavioural and mental state disturbances have only ever been in the context of heavy illicit substance misuse. He admitted to periods of feeling energised over the years where he would "make lots of plans" over the course of a few days.  However, this was the only symptom which approximated a bipolar mood disorder from the history I gathered in my interview, and I believe it is actually more in keeping with attention deficit hyperactivity disorder (ADHD) rather than bipolar.'

[24]Dr Hughes [36]

[25]Dr Hughes [38]

50Dr Hughes considered that you do meet the diagnostic criteria for ADHD.

51You reported a long history of gambling but said it was not a major problem at the time of Dr Hughes’ assessment.[26]

[26]Hughes [50]

Drug Use

52I set out earlier your varied reporting to Dr Hughes about when you started to abuse drugs.  You also

(a)   gave a history of extensive abuse of opiates, both illicit and prescription, and use of amphetamines over many years without having a significant dependence on that drug.[27] 

(b)   and you reported abuse of anti-anxiety medication for years, more recently Lyrica.  I note that when interviewed you told the police that you were taking that drug. 

[27]Hughes [44]-[46]

53You told Dr Hughes that you had, at the time of his assessment, weaned yourself down to one tablet of Lyrica a day, and that you ceased taking illicit drugs around 18 months ago.[28]

[28]Hughes [48]-[49]

54You told Dr Hughes that you made a connection between your substance abuse at the time and your offending. You told him that you were always in the midst of heavy substance abuse and that you were not thinking about consequences or repercussions. [29]  In your explanation to the AFP, when you were interviewed, you said, 'Drugs isn’t even a big part of it but when you mix it a little – a little bit then the gambling gets exacerbated.'[30]  You also said that the Lyrica was affecting your mental state and judgment.[31]

[29]Hughes [54]-[55]

[30]Interview #2 A217 (page 28)

[31]Interview #2 A219 (page 30)

55Regarding your addiction to prescription drugs, Dr Hughes accepted you were in the midst of heavy abuse of Lyrica at the time of the offending, and I accept his opinion.  Dr Hughes noted research that indicated negative effects on cognition from that drug, the most prevailing effect being upon the formation of new memories.  He noted the amount of drug you were taking was around 30 times the maximum prescription dose.[32]  There are also reports of elevation of reckless or impulsive behaviour when affected by that drug.[33] 

[32]Hughes [63a]

[33]Ibid

56This does not, however, lead to the conclusion that your drug use reduced your culpability.  The impact of the abuse of drugs on you at the time is unclear.  Even if there had been an increase in recklessness or impulsiveness, this offending was not impulsive, but rather systematic and planned. The reasoning behind Dr Hughes' opinion that your culpability and judgment were not reduced by your ADHD, apply also to the drug abuse.[34]

[34]Hughes addendum [4a]

57I do not accept the submission made by your counsel that the circumstances in which you first became addicted to drugs leads to some reduction of your culpability.  First, I do not accept on balance of probabilities that your father drugged you as a child or pushed drugs on you as a teenager.  I note, in particular, the varied accounts you have given about the commencement of your drug use. Secondly, I do not consider the drugs you were taking at the time impacted your judgment or capacity to reason about the wrongfulness of your actions.  Thirdly, obtaining money for drugs was simply part of your financial concerns, which also included gambling and life expenses.

58I was to sentence you on 25 October 2023, but you failed to appear that day.  I was told by your counsel subsequently that you did so due to an overwhelming anxiety about being put into custody.  You apparently ceased using Lyrica over the next two months between that date and today.  You report being now completely clear of that drug for four weeks.

Bugmy

59Your counsel relied upon the history you gave of abuse by your father including drugging you as a child, exposure to intergenerational trauma by your mother’s disclosures to you, seeing your sister being raped and your self-harming as a child to enliven the principles of Bugmy.  She submitted that these together amounted to profound childhood disadvantage and together with your father’s antisocial behaviours, including normalisation of dishonesty and drug abuse, your moral culpability was less than it would have been for a person not exposed to those traumas and influences.   

60I am troubled by the extent of the many traumas you have recounted.  Your mother told Dr Hughes she suspected you had been drugged by your father, but as I have said, I do not think this matter has been established on cogent evidence.  Your history of physical abuse, drug normalisation, and normalisation of criminal conduct by your father, is unsupported by any other evidence.  As to the self-harm, I consider that that itself is not a source of trauma but rather a response to it.  You reported many instances, your mother only referred to one reckless incident only of self-harm.

61It appears to me that at the time of the offending you had no qualms about defrauding and attempting to defraud the revenue.  You were selfish and driven by the desire for money.  Even if I were to accept, on balance of probabilities, that your childhood was one of profound disadvantage, any mitigation afforded on this basis would be countered by additional weight being given to specific deterrence and protection of the community. 

62Whilst I am prepared to accept that your background was not happy and that you turned to crime and drugs in your teens, I am unable to accept, on balance of probabilities, your statements about your father drugging you and supplying drugs and abusing you in the ways you have described.

Criminal History

63I was told that you were in your teens when you learned how to defraud people by purporting to sell things online, receiving the payment and never sending anything in return.[35]  I can see from your New South Wales criminal history that most of the offending was for low level amounts, especially compared to the quantum of the offences before me. 

[35]Defence Outline of Submissions [37]

64You first appeared in the adult courts in 2008 when you were 19.  The offences were stalking, assault and failing to leave the premises.  I was told you had been in hospital and had abused a nurse.  You received two years’ probation.  This may be related to an inpatient psychiatric admission noted by Dr Hughes, but this is not clear to me.[36]

[36]Dr Hughes [35]; Defence Outline of Submissions [29]

65In February 2013 you were in court on multiple charges of obtaining property by deception, for which you ultimately received a sentence of 18 months with a non-parole period of seven months.  You were 24 at the time.  The next year you were again in the local court for dishonesty charges, this time receiving a sentence of 12 months with a non-parole period of four months.

66In 2017 you were again sentenced for stalking, this time receiving a significant sentence of 15 months with a non-parole period of eight months.  In 2018 you were sentenced to nine months for having fled the court when you were being sentenced for the stalking charge.

67After you finished parole on the 2017 sentence, you moved to Victoria.  Since committing the offending for which I will be sentencing you today, you were sentenced on 23 November 2020 for theft and obtaining property by deception, and in June 2021 for possession of methylamphetamine and another drug, and possessing property suspected of being the proceeds of crime.

68I am told that you have pending charges for offending from 2019, 2020, and October 2022, with a consolidated plea booked in in the Magistrates Court.

69I was told also that since you were charged in February 2023 you had not accumulated any further charges.

Gravity of Offending

70The maximum penalty which applies to each charge is 10 years’ imprisonment.  Charges 1 and 3 are of attempt and there is therefore no loss to the revenue as a result of these offences. Whilst the extent of actual loss is a factor to be considered in a completed offence, when assessing the gravity of a charge of attempt, the fact that there was no loss does not necessarily mean the objective gravity of the offending is low. The number of acts and the time period over which these acts took place, as well as the significant potential loss if you had succeeded, are all factors to be taken into account.  Each charge and the associated offending must be considered on its own facts.

71I do accept that your offending was not particularly sophisticated.  You did not create a false identity for the payment of the funds. You used an ABN linked to your name and your own bank account to receive the payments. 

72Charges 1 and 2 were part of the same course of conduct.  Charge 3 was a new endeavour, but of a similar nature, that is attempting to deceive the tax office to give you money to which you were not entitled.  You took advantage of a system that relies on the honesty of taxpayers and their employers, but you did not involve any other honest person as a victim or patsy.

73Whilst you have not re-paid any of the money obtained under Charge 2, you have agreed to a restitution order.

Totality

74Whilst Charge 2 occurred as part of the course of conduct captured by Charge 1 it involves additional criminality and actual gain by you.  Thus, I consider that there must be a degree of cumulation between the sentences on those two charges.

75Charge 3 is separate offending, but it was close in time and of a similar character to Charges 1 and 2.  It was clearly a new enterprise, reacting to the government initiative of Job Keeper.  It involved creation of new documents and a sustained course of conduct.  In the interests of ensuring that the total sentence reflects the totality of the offending, there will be some concurrency between the sentence on Charge 3 and the other charges.

Reasons for Offending

76In the submissions filed on your behalf it was said that the offending commenced during the pandemic when you were homeless, addicted to prescription medication, gambling and with untreated ADHD.  It was submitted that you were desperate for money. 

77I note that Charge 1 commenced before the pandemic began to affect the community in any real way, and Charge 2 occurred as part of that course of conduct.  In the second interview you gave a long and self-pitying explanation for why you offended, claiming that this offending, like gambling, was a comfort to you in your otherwise meaningless life.  You told the AFP officers that you now understand that money is not everything and you are trying to work on repairing your relationships with your family. 

78You gave several versions of where the money went - you said that all the money just went down the drain, spent and frittered away.  You also said that you gambled a lot of it and you gave some of the money away.  Later you said that you gave around half of it to Mr Panwar.  The bank statement from the Westpac account shows that on 20 April 2020 you transferred $10,000 of the money to your mother and withdrew $11,000 as cash.  On 21 April, following the deposit of $10,739.96 you withdrew $8,500 from that account via an app.  That left a balance in that account of around $4,000 which was then whittled down by small payments and purchases and $3,000 going to betting services.  In the meantime, various deposits were made by you as well, the source of which is not indicated on the statement.[37]

[37]Exhibit NP3 in the depositions

79Based on your history of offending, the bank records, and the interview with the AFP, it appears to me that you committed these offences to get money, dishonesty being a long-term method used by you to make money.  Whilst I accept you had a problem with gambling and drugs, this does not mitigate your offending as I have said.

Delay

80The ATO was alerted to the discrepancies in your various documents and applications at the time they were lodged or shortly thereafter.  The offending was referred to the AFP in 2020.  You were not however interviewed or charged until February 2023.  There is thus nearly three years between your offending and the day of the charge. 

81It cannot be said that you wholly rehabilitated yourself in that time, but you have certainly made positive steps.  Furthermore, I take into account in mitigation that you have been waiting in suspense for the charges to arrive for all of that time.  You made reference to this in the interview.

82There was then a further two month delay after you failed to appear for sentence in late October.  Whilst you apparently weaned yourself off Lyrica in that time, I do not take the additional delay caused by your failure to appear into account in your favour.

Plea of Guilty and Remorse

83You made full admissions when interviewed and indicated a willingness to plead guilty at the earliest stage, and there has been rapid progress from the filing of charges in February this year to the plea and then sentence.  Your pleas of guilty were made before it had become apparent that the impact of the pandemic on the court list was passed, and they have obviated the need for what would otherwise have been a technical and reasonably lengthy trial.

84I accept that your pleas are not only an admission of guilt but do reflect some remorse.  You do understand the impact of your offending and the impact of defrauding the revenue.  Your mother writes of a transformation in you and says that she believes that you are extremely remorseful. 

85I was told that you had renewed your offer to provide information to the authorities regarding Mr Panwar and others.

86Whilst the prosecution submitted that your failure to appear in October for sentence was an indication of lack of remorse, I think it more likely that you were simply fearful of going into custody. 

Prospects for Rehabilitation and Specific Deterrence

87You report that you have ceased using illicit drugs, including Lyrica.  Whilst you have outstanding charges for offending before and after this offending, you apparently have not committed further offences since February this year.  You have initiated seeking mental health treatment and were apparently waitlisted for that.

88Furthermore, you are intelligent and you have the capacity to work hard when you are motivated to do so.  You speak of motivation to improve your relationships with your siblings and extended family, and your mother writes well of your interactions with her more recently.  She says your attitude towards life has improved over the last year or so, that you are managing your finances and have maintained steady accommodation.

89Dr Hughes considered that you have reasonable insight and self-awareness.

90I consider that you do have reasonable prospects for rehabilitation but nevertheless that specific deterrence remains a relevant factor in sentencing you. 

91I accept you would benefit from treatment for your ADHD, and support in respect to your gambling and drug issues.  It is not, however, appropriate to craft a sentence which would enable a CCO to be imposed to ensure structured and supervised rehabilitation if that sentence would otherwise be inadequate.

General Deterrence and Punishment

92General deterrence is an important factor in sentencing for offending of this type.  The tax office utilises a system that relies on the truthfulness of those filing documents.  Potential offenders must understand that whilst it may be relatively easy to provide false information and get paid, doing so will lead to significant consequences.  Offending of this type has the capacity to reap significant rewards for relatively little effort.

93Furthermore, the revenue obtained by the ATO is used for the benefit of our community.  Defrauding the revenue harms all of us because funds which could otherwise be used to assist people and our community are unavailable.

94I am also required to ensure that the sentences which I impose adequately punish you for your offending. 

Comparable Cases

95I note the two cases to which I was referred by your counsel.  In the case of Adams[38] there were some similarities in the gravity of the offending, but the learned sentencing judge in that case found that the accused was facing significant family hardship, which the sentencing judge found to be exceptional.  The offender was also facing the loss of his career. The sentence on the charge pursuant to s134.2(1) was two years’ imprisonment with immediate release on an RRO.

[38]DPP v Adams [2017] VCC 662

96Dattilo[39] involved one charge pursuant to s134.2(1) and one of attempt.  The amount paid out was $95,000 on the first charge and the attempt was for $82,500.  The method of offending was lodging claims for GST refunds which were not correct.  In that case there was a longer delay than in your case, the accused had one relevant prior and the judge found that there was some family hardship.  The sentence on Charge 1 was six months’ imprisonment with immediate release on an RRO.

[39]DPP v Dattilo [2016] VCC 1617

97Whilst the quantum of the completed charge in Dattilo was higher than the amount in Charge 2 in your matter, there was only one attempt, and it was for a considerably lower value than Charges 1 and 2 before me.

98In contrast, the cases noted by the prosecutor all involved actual imprisonment, often with longer sentences than those in Adams and Dattilo. 

99There are, of course, differences between all of those cases and yours.  Furthermore, past sentences, whilst relevant, do not set upper or lower limits on the sentences which I should impose.

Crimes Act 1914 (Cth) - s17A

100Section 17A of the Crimes Act 1914 (Cth) requires that I only impose a sentence of imprisonment if no other lesser sentence would be appropriate in all the circumstances of the case.

101Your counsel submitted that having regard to your past and your present efforts at turning your life around, a disposition that did not involve immediate imprisonment would be appropriate. On the other hand, the prosecutor submitted that a term of imprisonment was called for.

102The prosecutor also informed me that if a combination sentence of imprisonment on one offence and a CCO on another were to be essayed, I was limited to an actual period of incarceration of three months, due to the effect of the Crimes Act 1914 (Cth) s20AB read with the Sentencing Act 1991 (Vic) s38(2). I agree with the prosecutor’s submission that such a sentence would be inadequate in your case.

103Whilst the prosecutor submitted that a total sentence either below or over three years was within range, your counsel urged me to impose a sentence of three years or less.  Having regard to the gravity of the offending, the number of offences, your personal history including your criminal history, and the high need for general and specific deterrence, the sentences and orders for cumulation which I will impose lead to a disposition of more than three years, and thus I will set a non-parole period.

104Would you please stand up, Mr Crough.

Sentences

105Charge 1, two years and six months' imprisonment.

106Charge 2, 12 months’ imprisonment.

107Charge 3, 15 months’ imprisonment.

108The sentence on Charge 2 commences immediately.  The sentence on Charge 3 commences six months from today, and the sentence on Charge 1 commences 12 months from today. 

109Thus, the total effective sentence is three years and six months' imprisonment.

110I set a non-parole period of two years and three months.

111You may sit down.

112Pursuant to s6AAA, I state that if you had not pleaded guilty I would have sentenced you to five years' imprisonment with a non-parole period of three and a half years.

113I declare that you have already served eight days of pre-sentence detention, not including today, and I will make the reparation order by consent.

MR DOBER:  As Your Honour pleases.

MS MYERS:  As Your Honour pleases.

HER HONOUR:  Mr Dober, anything that I haven't covered that ought to have been covered?

MR DOBER:  No, Your Honour. 

HER HONOUR:  Ms Myers, anything?

MS MYERS:  No, nothing, Your Honour.

HER HONOUR:  Thank you, you may remove the prisoner.  I expect Ms Myers will be downstairs.

MS MYERS:  Yes, Your Honour. 

HER HONOUR:  Thank you.

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