CDirector of Public Prosecutions v Drew
[2024] VCC 497
•19 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-02108
| THE DIRECTOR OF PUBLIC PROSECUTIONS (CWTH) |
| v |
| ANDREW DREW |
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JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2024 |
DATE OF SENTENCE: | 19 April 2024 |
CASE MAY BE CITED AS: | CDPP v Drew |
MEDIUM NEUTRAL CITATION: | [2024] VCC 497 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Commonwealth Sentencing
Catchwords: Obtain financial advantage by deception - attempt to obtain financial advantage by deception - Plea of Guilty – Totality
Legislation Cited Criminal Code - Crimes Act 1914 (Cth) 16A2
Cases Cited:DPP v Rowson [2007] VSCA 176 - R v Mills [1998] 4 VR 235 - Azzopardi v The Queen [2011] VSCA 372 - R v Merrett, Piggot & Ferrari [2007] VSCA 1 - Tsang v The Queen (2011) 35 VR 240 - Morgan v The Queen [2013] VSCA 33 - DPP v Merryfull; DPP v Bloomfield [2023] VSCA 244 - Arthars v The Queen; Plater v The Queen [2013] VSCA 258
Sentence:Total effective term of 18 months imprisonment, pursuant to s.20(1)(b) Crimes Act released after serving 3 months, upon entering a recognisance in the sum of $1000 and to comply with the condition to be of good behaviour for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr S. Widdison | Ms. Olivia Kefford |
For the Accused | Ms N. Freijah | Ms. Brenda Lam |
HER HONOUR:
1Andrew Drew, you have pleaded guilty to two charges of obtaining a financial advantage by deception, and two charges of attempt to obtain a financial advantage contrary to the Criminal Code. You have also agreed to this court hearing, and you have pleaded guilty to a summary offence of commit indictable offence on bail.
Circumstances of the offending
2The full circumstances of your offending are outlined in the agreed prosecution opening of 19 March 2024, marked as Exhibit A, that is the basis upon which I sentence you.
3In summary, between 18 February 2022 and 26 August 2022 you lodged seven false Business Activity Statements with the Australian Taxation Office (‘ATO’), and three false claims for the Australian Government Disaster Recovery Payment (AGDRP) with Services Australia.
4The prosecution summary details the way in which the relevant schemes operate and their purpose, that is, the Goods and Services Tax, Business Activity Statements and the Australian Government Disaster Recovery Payments (see [8]-[15]).
5Of the 10 false claims made you successfully obtained a financial advantage on seven occasions from Commonwealth entities, namely the ATO and Services Australia. You obtained $110,494.00 from the ATO and $1,000.00 from Services Australia, in total of $111,494.00; and attempted to obtain a further $17,462.00 from the ATO and a further $2,000.00 from Services Australia.
6In summary you obtained and attempted to obtain financial advantage by deception by the lodgement of false Business Activity Statements using an ATO online account in your name via MyGov.
7You also lodged false claims for the AGDRP using a MyGov account in your name. The conduct underpinning your offending in relation to the lodgement of false BAS statements with the ATO is outlined at paragraph [17] of the prosecution opening.
8On 22 August 2022 the ATO commenced an audit of the activity statements that you had submitted and issued a letter advising you of the cancellation of your GST registration and ABN.
9On the same date through MyGov, you lodged a fictitious Discovery Recovery claim for the disaster relating to New South Wales floods. You used your personal details and made false claims as to being impacted by the floods.
10On 12 January 2023 an investigation was commenced by Victoria Police after receiving correspondence about you from the ATO.
11On 24 July 2023 investigators received a series of exhibits that showed your GST refunds were fraudulent.
12You were later arrested on 14 August 2023. During a record of interview conducted this day, you made full admissions to the conduct alleged, and further admitted the dishonestly obtained funds were used to fund a significant cocaine and gambling habit. Your answers in that interview are summarised in some detail at paragraph [28] of the prosecution opening.
13At the time of committing these offences, you were on bail. You were on bail from 12 March 2022 until your remand on 12 October 2022 for other criminal matters.
Gravity of offending
14Mr Drew, your offending is serious as indicated by the 10 year maximum sentence that applies to each indictable offence. General deterrence looms large in such offending. As the higher courts have stated, ‘the tax regime is dependent on the honest of those participating in it. Therefore, in cases such as this, considerations of general deterrence are given particular emphasis, and indeed prominence, in the sentencing process.[1]
[1]DPP v Rowson [2007] VSCA 176 at [24]
15Also as discussed at the plea hearing, such offending is often difficult to detect, ‘investigations are often expensive and there is the potential for significant loss to be sustained by the revenue’. As has also been stated many times before, and as you yourself have acknowledged in your letter of apology, serious tax fraud adversely affects the whole community.[2]
[2][2018] WASCA 148
16You engaged in a course of thoroughly dishonest and sustained criminal conduct over an approximate six month period. Your dishonest conduct included creating a false ABN and the lodgement of seven false Business Activity Statements with the ATO for GST refunds, purportedly owed for the operation of a non-existent automotive business; submitting those BAS in circumstances where you knew it was plainly dishonest; and submitting claims for the AGDRP intended for individuals who had suffered significant flood damage and knowing that this conduct was dishonest.
17You dishonestly obtained a significant quantum of money and by your admission the money was used to fund a significant drug and gambling habit. Further, I take into account that you committed the bulk of this offending whilst on bail, having been placed on bail on 12 March 2022.
18Quite properly it was accepted by your Counsel, Ms Freijah, that your offending is serious. As to the context of it, she relied on your record of interview and submitted that when you first created your ABN you had every intention of starting your own business. After receiving your first payment fraudulently, your drug and gambling addiction intensified alongside deteriorating mental health, and you spiralled down a self-destructive path.
19She highlighted your relative youth at the time and that your offending was not motivated to support a lavish lifestyle. She also submitted that your case can be contrasted to more serious offending involving a breach of trust, or the use of false identities to avoid detection, or lengthier periods of offending and greater amounts obtained.
Sentencing factors
20In sentencing you the court is required to take into account a range of sentencing factors as outlined in the non-exhaustive list contained in s16A2 of the Crimes Act.
21I have also considered other sentencing principles that are relevant to the court's task to fix a sentence of a severity appropriate in all the circumstances of the offence, as required by s16A(1).
Procedural chronology
22The procedural chronology in your case is of some importance, therefore at the outset I will summarise the important dates.
23Between 15 November and 8 December 2021 you committed several State offences including reckless conduct endangering serious injury and attempt to pervert the course of justice. I will refer to these as the State offences. I do note also that there are other charges surrounding this period of time.
24On 23 March 2022, you were arrested and bailed on these matters.
25Between 18 February 2022 and 26 August 2022, you committed the current Commonwealth offences.
26On 12 October 2022, you pleaded guilty to the State offences and you were remanded in custody.
27On 18 October 2022, you were sentenced on the State matters to a total effective term of 16 months' imprisonment with a non-parole period of nine months. On 6 July 2023, you were released on parole.
28Some 49 days later, on 14 August 2023, you were charged and interviewed on the current matters and remanded in custody.
29On 24 August 2023, your parole was cancelled.
30On 5 February 2024, your State sentence expired, having served the remaining parole period.
31As at the date of plea on 12 April 2024, you have therefore continuously been in custody since 14 August 2023, but you had only 79 days pre-sentence detention on the current matters.
32As of today it is agreed between the parties that you have 85 days in pre-sentence detention.
Plea of guilty and prior co-operation
33Your plea of guilty, Mr Drew, entitles you to an important sentencing discount. You entered your plea at the earliest opportunity, which I accept indicates your willingness to facilitate the course of justice and accept responsibility for your offending. Your plea has important utilitarian value, saving significant public resources. I also accept that your plea is indicative of remorse.
34Adopting a cautious approach to the issue of remorse, as I was urged to do by the prosecution, in all the circumstances I accept that you are remorseful. You were cooperative with the police and made full admissions to your offending. As noted in the above chronology you were interviewed after release on parole for unrelated State matters, where you were sentenced to your first term of imprisonment. Your counsel submits, and I accept, that in your interview you displayed contrition and insight into your offending. I also accept that your remorse is indicated in your letter of apology in which you stated, 'I have hurt the community by selfishly taking money that was not mine and should have been used to fund, support other people.'
35You have also expressed your remorse to others including your uncle Brett Drew, who states ‘he completely regrets the offence he's committed and he's intent on taking responsibility for his actions.'
Character, antecedents, age and prospects of rehabilitation
36Your personal circumstances were outlined by your counsel in her written submissions and are also canvased in the psychological material tendered on your behalf.
37Now you are 24 years of age, and you were 23 at the time of the offending.
38Your parents separated when you were five and while you were very close with your mother, and describe her as your ‘rock’, you did not have a relationship with your father until only recently. You have two older brothers, and they have a history of drug abuse, and therefore you were exposed to antisocial family influences and drug use from a relatively early age.
39In terms of schooling, you completed your Year 11. In primary school you were diagnosed with a non-verbal learning disorder, and also placed as a matter of course, it appears, on suicide watch. A psychological report from 2011 was tendered, which confirmed a diagnosis of ‘non-verbal disability, indicated by [your] ‘extremely low’ score on the ‘Perceptual Reasoning Index’.
40You struggled with this diagnosis and experience, as it made you feel ‘insecure’ and different. Psychologist, Dr Aaron Cunningham opines that ‘this had a destabilising effect on [your] self-esteem and self-perception and contributed to [your] depressive symptoms. You sought to escape your depressive symptoms through drug use with similarly disaffected peers.’
41After leaving school you commenced an apprenticeship but left to work as a labourer/boilermaker. You have since had a variety of jobs including installing boom gates and flag poles, furniture making and labouring work. You have a passion for cars, and you have been offered a mature-age apprenticeship as a mechanic. You have qualifications in chainsaw, white card, forklift and occupation health and safety.
42From the age of 18 you experimented with drugs. From the age of 20 you started using methylamphetamine. In 2022 you used cocaine, and you were using three to four grams of cocaine per week during the period of your offending. Your offending was motivated to source money for drugs.
43Dr Cunningham conducted a number of assessments and in summary concluded that you meet the DSM-5 criteria for a Persistent Depressive Disorder.
44In sentencing you, Mr Drew, I take into account your personal history and also the report and assessment of Dr Cunningham.
45Also I take into account as a relevant factor your relative youth. There are well-settled principles concerning young or youthful offenders, as outlined by your counsel[3].
[3]R v Mills [1998] 4 VR 235.
46In broad terms, the court recognises that due to their immaturity young offenders may be more prone to ill-considered or rash decisions. The courts also recognise the potential for youthful offenders to be redeemed and their effective rehabilitation in the long term to better protect the community. Of course, I must also weigh these considerations with the seriousness of your offending in this instance.[4]
[4]Azzopardi v The Queen [2011] VSCA 372
Totality and delay
47On your behalf it was submitted that totality, and the corresponding delay are important factors in determining the just and proportionate disposition in your case. With reference to the relevant chronology, it was submitted that the delay in prosecuting the case has had significant consequences, including your return to custody on remand for these matters and the cancellation of your parole. Further the lost opportunity of some concurrency between this matter and the subsequent state sentence imposed which has now been served in full.
48The prosecution accept in principle the relevance of totality in this regard and delay, but submit that delay between the time of the offending and sentence is not in itself a mitigating factor. Delay is a relevant factor on sentence where it is undue or unwarranted, which is not the case here. The delay in your case is not unusual and it is not contended that it falls within the category of ‘inordinate’ or that it was caused by any investigative or prosecutorial failing.
49Properly understood, this factor alone was not relied upon as mitigatory, but rather the focus of the sentence was that because of the unique chronology of your case the delay, ‘however caused’[5] has been the product of unfairness and is therefore mitigatory.
[5]R v Merrett, Piggot & Ferrari [2007] VSCA 1 [35]
50The totality principle applies to a consideration of the separate charges in your case. That is, while the separate charges represent distinct criminality, the overlap between the offending and its circumstances also need to be balanced and reflected, and this should ordinarily be achieved through appropriate orders of cumulation and concurrency. Separate to this, I consider that the totality principle also requires the court to give consideration and proper weight to the sentence imposed subsequent to your offending, that is the State sentence, even though was pointed out by the prosecutor, the offending was of a different nature and occurred at a different time.[6]The offending in that case was, as reflected in the sentence imposed, serious. Overall, I do consider that totality remains an important mitigatory factor in these circumstances and the absence of a temporal or circumstantial connection between the offending in question is instead relevant to the weight that the factors should be given.
[6]Tsang v The Queen (2011) 35 VR 240, 278; Morgan v The Queen [2013] VSCA 33, [65]
51I take into account therefore the disadvantages caused as advanced by your counsel by how your matter has proceeded. I also take into account the anxiety of having the charges hanging over your head in such circumstances compounded, as it was submitted, by your release and then return to custody. I also take into account the progress you have made within the relevant period.[7] Although your period of time in the community on parole was limited, you were apparently compliant with your conditions and motivated to change. Your family friend Naomi Polchar refers to having contact with you during this time and states, ‘he seemed really hopeful of getting a job, a house to rent and spending time with his family and friends, especially getting to know his little girl'.
[7]DPP v Merryfull; DPP v Bloomfield [2023] VSCA 244 [46]
52Every case is different and the factors seen properly to effect the exercise of the sentencing discretion will vary according to circumstances.[8] These particular factors as they apply in your case I accept should result in an appropriate moderation of sentence.
[8]Arthars v The Queen; Plater v The Queen [2013] VSCA 258 [29]
Prospects of rehabilitation
53In all the circumstances, I accept that your prospects, Mr Drew, of rehabilitation are reasonable, though there is a need for caution. As submitted by the prosecution your current offending took place while you were on bail for at least during part of the operational period, you were on a community corrections order, and you continued to offend while attending court dates for the state offences. Your offending is serious and was for a relatively protracted period. You have a criminal history for dishonesty and other offending, and you have breached court orders in the past.
54However, there are a range of factors that are protective and that reflect positively on your prospects of rehabilitation. They include your relative youth and your plea of guilty and acceptance for your offending. Also, you became a father to your daughter in January 2023 and she provides you with motivation and purpose. You met her for the first time when you were released on parole.
55Your mother states that you have missed most of your daughter's first year of life and only wish 'to settle into work and be the family man that he should and would like to be'. You have not offended since August 2022 and for a brief period of time, you demonstrated an ability to comply with parole, partly driven it was submitted, by the salutary impact of your earlier prison sentence. You are currently engaged in programs in custody and have achieved a number of certificates. You are also voluntarily participating in the Rebuild Program which commenced in September 2023 and involves case management and programs, and which has the potential of continuing within the community. The letter of Kim Metzler refers to your positive engagement and attitude.
56Also I take into account that you have the support of family and friends. Rawson Polchar refers to the drastic changes he has observed in you during this period of incarceration. Further, you have stable accommodation available in the community with your uncle. And as I have already noted, work opportunities upon release.
57Dr Cunningham considers that you would benefit from engaging with psychological interventions and drug and alcohol counselling. The recent corrections order assessment refers to your demonstrated insight into your substance use and its negative consequences and also that you report to be very positive about your prospects of remaining abstinent upon release.
Sentencing purposes
58I accept that general deterrence, specific deterrence and punishment are all important considerations in sentencing in cases of deliberate fraud against the revenue. I also consider that specific deterrence is a relevant consideration. Your rehabilitation is also a factor that I must take into account.
59Further I take into account the principles of parsimony, proportionality and as already discussed totality. I have had regard to the comparable cases provided by the prosecution, noting however that each case is unique and these cases reflect differences in offending and personal circumstances.
60The prosecution submit that a term of immediate imprisonment is the only appropriate sentence for each offence and accepts that such a term by way of a recognisance release order is within range. Your counsel, Ms Freijah, submits that given the unique factors in your case, the Court should impose a combination sentence or otherwise a recognisance order allowing for your immediate release.
61I had you assessed for a community corrections order. You were assessed as suitable for such an order. After discussion in Court on this issue both parties appear to agree that it is technically open to the Court to impose a term of imprisonment on one charge and a community corrections order on another, though the term of imprisonment would be constrained in accordance with the operation of s38(2) of the Sentencing Act.
62Mr Drew, given the gravity of the offending and the relevant sentencing principles, and in particular the prominence of general deterrence, I consider that the only just and appropriate sentence in your case is one of imprisonment to be entered into, or rather served by way of a recognisance release order. I do not consider that a corrections order is capable of adequately reflecting just punishment in your case. I have taken into account and weighed up, in particular, the mitigatory factors as advanced in your case in my consideration of the appropriate term and its structure.
Sentence
63Synthesising all relevant matters you are convicted and sentenced as follows.
64On Charge 1, 11 months' imprisonment;
65Charge 2, four months' imprisonment;
66Charge 3, two months' imprisonment;
67Charge 4, three months' imprisonment.
68Charge 1 is the base sentence and effectively on Charges 2, 3 and 4, I cumulate one month of each sentence to be served on Charge 1. What this means for the purpose of Commonwealth sentencing is that the sentence on Charge 1 is to commence today, the sentence on Charge 2 is to commence three months before the expiry of Charge 1, the sentence on Charge 3 is to commence one month before the expiry on Charge 2, and the sentence on Charge 4 is to commence two months before the expiry on Charge 3.
69Counsel, I will give you a moment, but as I understand it, I am required to stipulate commencement dates. That should total an effective term of 14 months imprisonment.
70On the summary offence of commit indictable offence on bail, I sentence you to 14 days imprisonment and order that this is to be served concurrently, noting that I have taken your circumstance into account in my assessment of the substantive offending and its gravity.
71As I have indicated, this results in a total effective term of 14 months imprisonment which I will have counsel check in terms of my numbers and they can confirm that; do you agree?
72COUNSEL: Yes, Your Honour.
73HER HONOUR: Pursuant to s21B of the Crimes Act I order that you be released after serving three months upon you entering a recognisance in the sum of $1000 and to comply with the condition that you be of good behaviour for a period of two years.
74Mr Drew, it is incumbent on you to comply with this condition to pursue the positive changes and the opportunities that have been suggested on your behalf.
75Pursuant to s18 I declare that you have served 85 days in pre-sentence detention.
76I consider that the term of imprisonment imposed gives appropriate weight to all relevant sentencing principles and that the three months you have been ordered to serve is the minimum term which I consider to be just and appropriate in all the circumstances taking into account these principles.
77Pursuant to s6AAA, but for your plea of guilty, I can indicate that I would have imposed a term of imprisonment of some 2 years and three months and order that you serve seven months.
78Now Mr Drew, I am required to explain the consequences of the order and then I will leave the link for a moment so that your counsel can assist you further if need be.
79I have imposed a recognisance release order. After serving three months, and I have declared that you have served 85 days to date, you will be released. You do not pay the money that I have indicated, the $1000 now, it is something that you may be liable for if you breach the order and return to the court. It is a surety of types but not one that is payable presently.
80You need to promise to be of good behaviour for two years. The outstanding amount of time, namely the 11 months, is hanging over your head. Now do you understand that?
81ACCUSED: Yes, Your Honour.
82HER HONOUR: If you are not of good behaviour and you breach the promise within that period of time it is likely you will be brought back before me, and one of the options open to this court, and you would be at serious risk of, is being required to serve the outstanding period, which is the 11 months. Do you understand?
83ACCUSED: Yes, Your Honour.
84HER HONOUR: A recognisance release order is also capable, I am required to inform you, of being subject to an application for discharge or variation.
85Now Mr Widdison, as I understand it, an order will be drafted and provided by your instructor, that is what ordinarily occurs?
86MR WIDDISON: Yes, Your Honour.
87HER HONOUR: All right. There is also an application for reparation pursuant to s21B of the Crimes Act, or rather there are two applications in the amounts that we discussed earlier. As I have been told by Ms Freijah on your behalf, they are unopposed. So I propose taking into account all relevant matters in the exercise of my discretion, to make the orders that are sought. All right.
88ACCUSED: Yes, Your Honour.
89HER HONOUR: Now Mr Widdison, does that constitute a sufficient explanation of the order?
90MR WIDDISON: Yes, Your Honour.
91HER HONOUR: Now Mr Widdison, I understand you have got now, you do actually have the recognisance release order drafted?
92MR WIDDISON: Yes, Your Honour.
93HER HONOUR: Could I have a copy of that, or maybe it has been emailed through?
94MR WIDDISON: I have emailed it to Your Honour's associate.
95HER HONOUR: All right. Yes, Ms Freijah, you have read this? It seems to accord with precisely what I have sentenced Mr Drew to.
96MS FREIJAH: Yes, Your Honour.
97HER HONOUR: Now what I will do, as I understand it, a link is not - a direct link to have Mr Drew sign it here in court is not available. What we have experienced in the past is that an order can be provided sometime today for his signing, but perhaps what I will do, given that we have it here and out of an abundance of caution, I will read through precisely the order with him, have him consent, then we will have him also sign it, when it can be messaged to him and provided to at the prison. Are both counsel content with that?
98COUNSEL: Yes, Your Honour.
99HER HONOUR: Mr Drew, we have got a copy of the recognisance order. At some stage today you are going to be asked to sign it, all right? So you will receive it shortly. What I am going to do is, given I have it here, I am going to take you through it.
100This is the order of the court:
101The court orders the release of you under paragraph 21B of the Crimes Act, after serving three months of the term of imprisonment upon you giving recognisance of $1000, to comply with the following conditions. I pause there to note I have reckoned the 85 days. So that comes off the three months. And the $1000 is not payable right now. So I have already explained that to you.
102The conditions are:
103(a) That you are of good behaviour for two years. I explained to you what that means and potential consequences, all right?
104ACCUSED: Yes, Your Honour.
105HER HONOUR: The order has been issued because you were charged with the following federal offences that we have already gone through: (2) Dishonestly obtain a financial advantage by deception from a Commonwealth entity; (2) attempt to obtain a financial advantage by deception from a Commonwealth entity. The court has sentenced you to a term of 14 months imprisonment and the court has decided that you are to be released after serving three months of the sentence if the defendant complies with the conditions of this order.
106So you understand the terms of the order?
107ACCUSED: Yes, Your Honour.
108HER HONOUR: You consent to the making of the order?
109ACCUSED: Yes, Your Honour.
110HER HONOUR: All right. I think that is sufficient. So (1) the order has been - I have had, and that is you, Mr Drew, have had explained to you - (1) the purpose and effect of the order; (2) the consequences that may follow if you fail without reasonable excuse to comply with the conditions of the order; and (3) that the order may be, and I have already referred to this, discharged or varied under the relevant section of the Act and that you agree that you are bound in accordance with the order, and agree that you have been given a copy of it.
111Now while you have not been given a copy of it, I have effectively read it out to you word for word and explained it to you. All right? So you acknowledge and agree with that?
112ACCUSED: Yes, Your Honour.
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