CDirector of Public Prosecutions v Douglas

[2024] VCC 1710

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-01094

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

REBECCA DOUGLAS

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Mildura
DATE OF HEARING:	18 September 2024
DATE OF SENTENCE:	28 October 2024
CASE MAY BE CITED AS:	CDPP v DOUGLAS
MEDIUM NEUTRAL CITATION:	[2024] VCC 1710

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Legislation Cited:  Criminal Code (Cth) ss 11.1(1), 134.2(1); Crimes Act 1914 (Cth) s16A

Cases Cited:DPP (Cth) v Goldberg 48 ATR 549

Sentence:  TES 3 years and 6 months imprisonment. Non- parole period of 2 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Mr S. Ginsbourg	Commonwealth Director of Public Prosecutions (C.D.P.P)
For the Accused	Mr G. Lascaris	Middleton Maisner Legal

HER HONOUR:

1Rebecca Douglas, you have pleaded guilty to:

(a)   Two 'rolled up' charges of dishonestly obtaining a financial advantage by deception from the Commonwealth[1]; and

(b)   Two 'rolled up' charges of attempting to dishonestly obtain a financial advantage by deception from the Commonwealth.[2]

[1]Criminal Code (Cth) s 134.2(1).

[2]Criminal Code (Cth) s 11.1(1) and 134.2(1).

2The maximum penalty for each offence is 10 years’ imprisonment, or a fine of 600 penalty units ($133,200), or both.

3You admit your prior criminal history.[3]

[3]Exhibit 2 on the Plea – Criminal History.

Circumstances of Offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 26 August 2024, the accuracy of which you accepted through your counsel.[4]  

[4]         Summary of Prosecution Opening for Plea dated 26 August 2024.

5An Australian Business Number (ABN) is a unique identifier used by Australian businesses for tax and other business purposes.  Liability for Goods and Services Tax (GST) arises when a GST-registered entity, typically a business, makes a taxable supply.  The amount of GST payable is generally calculated at a rate of 10 per cent of the value of supply.

6A GST-registered entity is entitled to claim a credit for the GST it pays when it makes a purchase of business-related goods or services. The credit is called an input tax credit and is offset to the entity’s GST liability.  The purpose of the input tax credits is to ensure that GST is ultimately only borne once and that the party who bears the costs is the consumer or end user.

7Business Activity Statements (BAS) are lodged by businesses with the Australian Taxation Office (ATO), so that amounts relating to purchases made by the business are entered to claim income tax credits.  BAS can be lodged for either monthly or quarterly periods.  Customers of the ATO can lodge an original BAS for a reporting period and can also submit further revised statements for the same period.

8GST fraud occurs when an offender utilises an ABN registered for GST to claim GST-related input tax credits to which they are not entitled.  A business can also register with the ATO for Fuel Tax Credits (FTC) and Luxury Car Tax (LTC) credits. Claims for these credits can be included in the BAS lodged by businesses.

9Rebecca Douglas, you lodged a total of 29 Business Activity Statements (BAS) under your own Australian Business Number (ABN), as well as under the ABN of your ex-partner, Shannon Tacken.  Each BAS contained false information through which you claimed refunds of Goods and Services Tax (GST), Fuel Tax Credits (FTC) and Luxury Car Tax Credits (LTC) from the Australian Taxation Office (ATO).

10Between September 2021 and August 2022, under your own ABN, you obtained $87,411.31, and attempted to further obtain $317,066.  Between March 2022 and May 2022, using your ex-partner Shannon’s ABN, you obtained $120,391.28 and attempted to obtain a further $95,260.

Nature & Gravity of Offending

11

The total amount which you either obtained or attempted to obtain was $620,128.59.  Your offending was not a 'one off' – it involved lodgement of

29 fraudulent BAS over an extended 11-month period. 

12While not the most sophisticated example of this offence type, your offending was persistent, complex, and calculated.  It involved updating bank account details and moving money between multiple accounts in your name.  Brazenly, your offending involved not only your own ABN but also your former partners’ ABN, which you utilised after learning that your own ABN was to be audited.  You not only compromised your own ATO record but that of another person.

13You used the money to buy a luxury car and to make other 'lifestyle' purchases.  You were motivated by greed, and also used the proceeds of your fraud to gamble. Compulsive gambling is not a mitigating factor in sentencing.

14With the greatest of respect, I reject your counsel’s submission that your offending did not involve a breach of trust.  Fraud against the Commonwealth is easy to commit but time-consuming and expensive to detect, investigate and prosecute. The taxation system relies heavily on self-assessment and self-reporting by the taxpayer and is a trust-based system which is vulnerable to abuse. Taxation fraud such as that which you have committed does constitute a fundamental breach of this trust.

15There is no victim impact statement in your case, but taxation fraud is not a victimless crime.  It impacts all other taxpayers who lawfully pay what is due for the maintenance of our governments, their institutions, and services for the common good.   The Court of Appeal has repeatedly observed that tax evasion

'is a form of corruption and is therefore insidious. In the face of brazen tax evasion, honest citizens begin to doubt their own values and are tempted to do what they see others do with apparent immunity.  At the very least, they are left with a legitimate sense of grievance, which is of itself divisive.  Tax evasion is not simply a matter of failing to pay one’s debt to government. It is theft, and tax evaders are thieves.”[5]

[5]Vincent JA (with whom Winneke P and Batt JJA agreed) quoting with implicit approval the observations of the sentencing Judge in DPP (Cth) v Goldberg 48 ATR 549 at [32] and cited with approval in DPP (Cth) v Gregory (2011) A Crim R 147.

16All four charges in this case are 'rolled up' counts. That is, they include multiple instances of criminal conduct.  Accordingly, your criminality is greater than where a charge is made up of only one episode of criminal conduct.

17Ms Douglas, on any reckoning, you obtained a significant amount of money through your offending, and you have not repaid any of that sum.

18Your offending is objectively serious, and your moral culpability is high.

19When arrested, you told police that you thought this was 'easy money'.  You subsequently instructed your legal advisers that you don’t remember much about the period of your offending due to your heavy drug use at the time.

Personal Circumstances

20You are now 43 years of age and grew up in Tooleybuc, New South Wales, as the eldest of three siblings.   Your parents separated when you were four years old, and your mother re-partnered six years later.  Your father was a heavy drinker and cannabis user.

21You went to various schools around Mildura, but due to a problematic relationship with your mother, you moved to Melbourne to live with your father in Year 9.  Regrettably, your father immediately moved to Queensland and you moved in with an auntie in Doveton, where you completed Year 10 at school.

22You left school at the beginning of Year 11 and commenced work at Red Rooster. Your father returned to Melbourne around that time, and you began living with him again, however he provided minimal parental supervision.

23You fell pregnant at 18 and gave birth to your first child, Joshua, at 19.  Around this time, you commenced a relationship with Ben and had a child, Joel, together three years later.  You separated from Ben when Joel was aged one.  In 2006, you had your third child, Heidi, to Ben.

24In 2012 you had a fourth child, Boston, with Jason.  An intervention order was ultimately made to prevent the family violence that characterised your eight-year relationship with Jason.

25In 2019, shortly after your relationship ended with Jason, you commenced a new relationship with Shannon.  You lived together with your four and his two children. Again, you were the victim of family violence.  Shannon was ultimately incarcerated for the offences he committed against you.

26You have worked at various fast-food outlets and as a shop manager for two petrol stations.  

27You commenced smoking cannabis between the ages of 13 and 14, and around 12 months later you commenced taking ecstasy and speed.  You were introduced to methamphetamine during your relationship with Shannon and your use soon escalated.

28During the period of your offending, you were using methamphetamines and GHB daily. You were also using ketamine, ecstasy, and cannabis on a regular basis.

29

A letter from the Australian Community Support Organisation dated

17 September 2024 confirms that you have completed an intake assessment for a referral to specialist AOD supports or alcohol and drug counselling.

30You have had an ongoing gambling issue since you were 17 years old, and during the period of offending I am told that you were gambling approximately $1,000 per day online and at the pokies.

Criminal history

31Your criminal history reveals that when you were 18 you had an opportunity to complete gambling related treatment.  Unfortunately, you did not engage with the therapeutic intervention at that early point in your life.

32You have a history of relevant prior convictions.  Whilst not a prior conviction, on 1 November 2023 you were sentenced by the Mildura Magistrates’ Court to an 18-month community correction order for obtaining, and attempting to dishonestly obtain, a financial advantage by deception from the Commonwealth, relating to dishonest Medicare benefit claims which netted you $6,627.80.  You attempted to obtain a further $6,401.50. You made these claims between December 2021 and January 2022.

33You committed this Medicare fraud during the same period as the charges before this court.  As such, to some extent, the principles of totality are enlivened, and I will take them into account when sentencing you.

Probable effect of proposed sentence on family or dependents

34Your children Boston, aged 11, and Joel, aged 21, are currently living with you in Mildura in a unit you rent from your parents.  Joel lives with serious mental health issues and receives regular therapy and is prescribed medication.  Boston will begin high school next year.  You are now a first-time grandmother to your nine-month-old granddaughter, Layara, who resides in Queensland with your eldest son Joshua.   Your daughter Heidi has recently graduated from high school a few days ago.

35Joel will be required to act as a primary carer for Boston when you go into custody. This will no doubt pose a serious challenge for Joel.  As a backup, Boston can move in with his father, who also lives in Mildura.  I adjourned your plea to give you time to make the necessary arrangements for Boston’s care, and to permit you to attend Heidi’s graduation before you go into custody.

36Whilst there is insufficient evidence before the court to conclude that the impact of your incarceration upon your family amounts to 'exceptional hardship', I do take the likely impact on your children, and Boston in particular, into account in sentencing you.

Prospects of rehabilitation

37Your risk of reoffending will depend upon you receiving and engaging in appropriate counselling to assist you in addressing your various issues with addiction.  Given your age and lack of prior efforts to engage in such therapy, your prospects must be viewed as guarded.  While hope is not extinguished, rehabilitation as a sentencing considering will be given less weight than might have otherwise been the case if you had demonstrated efforts to address these issues after your arrest.

Remorse, degree of co-operation and Plea of Guilty

38You made some admissions to police during your record of interview but denied other aspects of your offending relating to the use of Mr Tacken’s ABN, and you attempted to deflect responsibility onto other people.  It cannot be said that you were fully forthcoming once your offending was detected.

39You did ultimately plead guilty at the earliest opportunity, and in doing so you avoided the need for a trial, saved witnesses the stress of giving evidence in court, and avoided the use of public resources that would have otherwise been spent conducting a trial.  I take the utilitarian value of your plea of guilty into account.

Sentencing objectives

40The burden of your fraud on the Commonwealth falls upon the whole community. There are less funds in the revenue pool to fund important infrastructure like hospitals, universities and national highways.  You have a history of dishonesty offences, and of failing to comply with a community-based order.  The sentence I impose, must adequately punish you and deter you from similar offending in the future, but most importantly it must also send a clear message to others who are tempted by what they see as 'easy money', that they risk spending time in jail if they pursue the same fraudulent offending that you chose to.  General deterrence and denunciation are the paramount sentencing objectives in your case.

Totality

41As I have already mentioned, you were recently sentenced in the Mildura Magistrates’ Court for similar offending.  Charges 1 and 2 in this case relate to the offending using your own ABN, whilst Charges 3 and 4 concern offending using Shannon Tacken’s ABN.  There is an overlap in both the timeframe and the nature of the charges in this case with the nature and charges in the case involving the Medicare fraud.  The principle of totality operates to require that the sentence I impose reflects the overall criminality of your offending behaviour.  As such, some concurrency is required between the offences in this case, and that imposed in the Magistrates’ Court. I also have regard to the community correction order which was imposed in relation to the Medicare fraud by the Magistrates' Court, and in particular the therapeutic options available to you under that order.

Comparative cases

42To ensure consistency in sentencing practices, I have had regard to sentencing practices across the country.  To this end, I have regard to the table of comparable cases which were annexed to the prosecution’s sentencing submissions, and I heard oral submissions from your counsel, Mr Lascaris, and the prosecutor.  Your counsel submits on your behalf that, having regard to all the circumstances of your case, it is open to the court to impose a lengthy recognisance release order with a relatively short period of imprisonment to be served.   However, I consider that your offending is too serious for such a sentence to be open to the court.  I conclude that for offending of a similar gravity to yours, sentencing practices require a total effective sentence imposed involving the imposition of a head sentence with a non-parole period.

Conclusion about general sentencing principles

43In sentencing you I must have regard to a range of matters such as the seriousness of the offending, the impact of your offending on any victim, your culpability, and your personal circumstances, including the probable effect that this sentence will have upon your family. [6] I must balance the interests of the community in denouncing and deterring others from engaging in criminal conduct with the interests the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.  I must impose a sentence which is proportionate to the gravity of your offence, considering the circumstances.

[6]Crimes Act 1914 (Cth) s.16A.

44Having regard to these factors, it is clear that no sentence other than one which involves an immediate term of imprisonment is warranted.  Given the term I intend to impose, I will set a non- parole period.  That is, the minimum period you must serve in custody before you can apply to the Parole Board for early release.  If released on parole, you would serve the remainder of your term in the community subject to certain conditions.  If you fail to comply with those conditions, your parole can be revoked or varied, and you would serve the balance of your sentence in custody.

Sentence

Imprisonment

45Rebecca Douglas, I sentence you as follows:

46On Charge 3, (dishonestly obtaining a financial advantage using Mr Tacken’s ABN), you are convicted and sentenced to two years and six months' imprisonment.  This is the base sentence and will commence today, 28 October 2024.

47On Charge 1, (dishonestly obtaining a financial advantage using your ABN), you are convicted and sentenced to two years' imprisonment. This sentence will commence on 28 October 2025.

48On Charge 2 (dishonestly obtaining a financial advantage using your ABN), you are convicted and sentenced to 18 months' imprisonment. This sentence will commence on 28 August 2027.

49

On Charge 4 (dishonestly attempting to obtain a financial advantage using

Mr Tacken’s ABN), you are convicted and sentenced to 12 months' imprisonment. This sentence will commence on 28 April 2027.

50

Six months of the sentence on Charge 1; four months of the sentence on Charge 2, and two months of the sentence on Charge 4 are to be served cumulatively upon each other and upon the base sentence of two years and

6 months imprisonment imposed on Charge 3.

51That is, the total effective sentence is three years and 6 months' imprisonment.

52I order that you serve two years and four months' imprisonment before becoming eligible for parole. 

Section 6AAA Declaration

53Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of six years' imprisonment with a non-parole period of four years.

Order for Reparation

54Pursuant to s.21B of the Act. I make an order that you pay reparation in the sum of $207,802.59 to 'the Commissioner of Taxation as delegate for the Commonwealth of Australia'.  You do not oppose this order.