CDirector of Public Prosecutions v Fesseha

[2025] VCC 988

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-24-01956

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

LEUL FESSEHA

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 June 2025
DATE OF SENTENCE:	10 July 2025
CASE MAY BE CITED AS:	CDPP v Fesseha
MEDIUM NEUTRAL CITATION:	[2025] VCC 988

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Guilty plea – Dishonestly obtain a financial advantage by deception from the Commonwealth – Centrelink employee – Generated false benefits - Unlawfully obtained a total of $217,009.26 - Remorse – Restitutions - Rehabilitation during a delay – Reduced moral culpability due to upbringing.

Legislation Cited:      Criminal Code (Cth)

Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Verdins [2007] VSCA 102; 16 VR 269; Wilson v The King [2023] VSCA 276; CDPP v Alateras [2004] VSCA 214; CDPP v Jenkins [2024] VCC 1138; CDPP v Simpson [2023] VCC 1129; Black v The Queen [2022] VSCA 125; Crough v The King [2025] VSCA 165.

Sentence:                  Total effective sentence of 35 months' imprisonment - released on a recognisance to be of good behaviour in the sum of $2,000 after serving a period of imprisonment of 11 months.

6AAA: Four years' imprisonment with a non-parole period of two years and 10 months' imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Mr M. Keks	Solicitor for the Commonwealth Director of Public Prosecutions
For the Accused	Mr B. Newton	Simon English Lawyers

HIS HONOUR:

1Leul Fesseha, you have pleaded guilty to three charges of dishonestly obtaining a financial advantage by deception contrary to s134.2(1) of the Criminal Code (Cth). The maximum penalty is 10 years’ imprisonment.

2At the time of the offending, you were a Centrelink employee. You used your position at Centrelink to access the Centrelink mainframe computer system, and fraudulently altered the address and accommodation of 17 Centrelink customers to generate one-off Family Tax Benefit ('FTB') arrears payment to which those customers were not entitled.

3You then changed payment destination details for those payments to either your own bank account or to bank accounts held by third parties. Subsequently, you asked those third parties to withdraw the deposited funds and give you money in cash.

4You also submitted a false claim for FTB payments on the basis that a child was in your fulltime care. You received those FTB payments for four years.

5In total, you unlawfully obtained $217,009.26 from the Commonwealth to which you were not entitled.

Background

6You commenced employment with Centrelink on 24 July 2006. Your last position was a fulltime position at the APS4 level in the Newport Service Centre as a community engagement officer. Your employment was terminated on 4 February 2013 for misconduct, being this offending, or at least what was understood of this offending at that time.

7The investigation into this offending commenced when information was received that a staff member with your logon details changed payment destination details to a St George Bank account and then completed an activity that triggered FTB arrears payments.  Investigations revealed the St George account was held in your name.

8You were born in March 1964. You were 46-48 years old when the offending occurred. You have no criminal history.  You have no subsequent convictions.

9There is no pre-sentence detention in this matter.

Charge 1

10Charge 1 relates to a Family Tax Benefit claim you lodged on 15 March 2010. The FTB claim asserted that a child came into your fulltime care on 1 September 2009 because her natural mother was unable to care for her. In the claim, you stated that the child had not lived or travelled outside Australia since 1 September 1994, and you sought ongoing fortnightly payments into a National Australia Bank account.  In the application, you gave the child’s mother name as Roza Fesseha.

11You provided a birth certificate for the child and parental details. The birth certificate identified the child’s mother as Roza Fisha. I understand this to be accurate.  You provided a signed rent certificate as to your monthly rental payments in Footscray. You also provided your Australian passport and a letter purporting to be from Roza Fesseha stating that she had transferred her parental responsibility to you, her cousin, from 1 September 2009 due to her personal circumstances and for health reasons. This arrangement was suggested to be long-term and voluntary.

12You received the payments from 2009 to 2013.  Those payments ceased when you left Australia on 4 June 2013.

13In fact, the child and her mother left Australia on 31 May 2007 and, although they have returned in recent times, were not present during the period in which you received these payments.  The total amount you received was $27,640.09.

14Your counsel, Mr Newton, told me that based on your instructions, most of the money received from the conduct covered by Charge 1 was sent to Ethiopia for the benefit of the child.

15You gave evidence about this issue, as there was no other evidence in the brief that supported this assertion. Your evidence was that you met Roza, the child’s mother, at the Sunshine Hospital. You were at the hospital because of your involvement in a community group and your role as a community leader helping Ethiopian people in Melbourne who faced challenges. The child was in intensive care and in a mini crib.

16You gave evidence that you met Roza again at a church when the child was being baptised. You said that after she left Australia, you called her when she was in Ethiopia to see how the child was progressing.  That was sometime between 2007 and 2009. Then in 2010 you went to Ethiopia, and you met her there.

17You said that when you saw her in Ethiopia you gave her some of your money to help her. You asked her if she had a birth certificate. She gave you the certificate, and you said you would see if you could help. You took the certificate back to Australia and submitted the application which contained the false information, namely that the child was in your care. You said you did that because you wanted to help them, and to provide them with the financial support to live.

18You gave evidence that in more recent times Roza has returned to Australia from Ethiopia. You said she was not prepared to come to court to give evidence about these matters. She told you she had no idea about what you had done and asked you why you put her in this situation.

19You said that every time you received the money you sent it back to her with people you knew, in cash. You supported her in 2010, and you said you personally took cash to her when you went to Ethiopia on another occasion.

20You were cross-examined, and you suggested that using your own name on the application was a result of the confusion, rather than a deliberate deception. You accepted that your contact with Roza was limited before she returned to Ethiopia. You asserted that you gave her all the money you received from Charge 1 but accepted the money you received in relation to Charges 2 and 3, you kept for yourself.

21You said that you would withdraw money, then exchange it into US dollars, and put it in a separate bank account.

22You were cross-examined about your bank statements in this matter. Those statements revealed that the early payments you received from this fraud captured by Charge 1 were used for your own expenses. In my opinion, the bank statements clearly contradict the evidence you gave.

23I do not exclude that in the period of the charges you may have provided Roza, the child’s mother, with some money for the benefit of the child; however, I reject your account of preserving the funds obtained in this fraud for her, so that she could be given cash by individuals who went to Ethiopia, as implausible and unsupported by any other evidence. In my opinion, it is not believable that you accounted for the money in this way so that it could be taken in cash to Roza in Ethiopia.  

24Today, Mr Newton has tendered some further material that suggests the child is back in Australia and you have been paying for her school fees over the last two years.  I accept that.  I accept you have some ongoing connection to the child, but I do not accept that the money obtained in Charge 1 was predominantly given to the child’s mother and I do not accept that the motivation for this offence was entirely to provide the money to Roza for the benefit of her child.  That is my finding on the contested factual issue that relates to Charge 1.

Charge 2

25Between 11 October 2011 and 20 April 2012, you used your position at Centrelink to generate fraudulent FTB arrears payments on twelve customer records, including changing the payment destination to redirect those payments to bank accounts held in the names of four people who are known to you but who were not entitled to receive those payments.

26You updated each customer’s accommodation details from being a homeowner to 'paying private rent'.  You added a rental amount and then backdated the date from between two to six years.

27The Centrelink computer system calculated the customer as having been entitled to a higher rate of payment, and an arrears payment was generated.

28At the same time, you changed the bank account details and updated the customer’s home address to one of three new addresses, which are set out in the prosecution opening.

29Correspondence was then redirected to the new addresses. After a short period, you changed back the addresses to the original customer details. The precise details are set out in a table in the Crown opening.[1] The amount you obtained from these deceptions was $125,440.86.

[1]        Exhibit “A”.

30Investigation into this conduct started in February 2013.  Witness statements were obtained from the holders of the accounts in which the payments were deposited. In their statements, they described how they knew you and the approach that you made in relation to these payments.

Charge 3

31Between 2 April 2012 and 19 July 2012, you generated further fraudulent FTB arrears payments on a further five customer records, changing the payment destination on four records to your own St George Bank account, and, on another record, to your Suncorp-Metway Bank account.

32You used the same method as in Charge 2. The total amount defrauded was $63,928.11.

33Overall, the total amount obtained from the three charges, as I said earlier, is $217,009.26.

34On 28 May 2013, a search warrant was executed at your address in Hoppers Crossing. You declined to make a record of interview on 3 June 2013. The following day you left Australia, and you did not return until 21 May 2021. While overseas, you contacted a Centrelink investigator, Mr Patterson, in May 2014 and made admissions to redirecting FTB arrears payments into various bank accounts.

Procedural history

35After you returned on 21 May 2021, I accept you contacted Services Australia, but the Commonwealth Director of Public Prosecutions was not notified of your return until 22 March 2022.  The brief was reassessed having regard to the time that had passed since the offending. Charges were issued on 21 May 2024. At that time, you were back in Ethiopia again, but there were no restrictions on you travelling and there was no suggestion you would not return. You did return on 2 July 2024. The charges were then served on 1 August 2024.  The matter has proceeded swiftly, or at least swiftly in terms of the criminal justice process since then.

Sentencing Factors

36Section 16A(2) of the Crimes Act (Cth) sets out a non-exhaustive list of factors to be taken into account in sentencing. Section 16A(1) provides that I must impose a sentence of a severity appropriate to the circumstances taking into account the known s16A(2) factors.

Contrition – s16A(2)(f); Reparation – s16A(2)(f)(i); Guilty plea – s16A(2)(g); Cooperation – s16 (2)(h)

37You pleaded guilty at a committal mention hearing. This was the earliest reasonable opportunity after the charges were filed for you to have pleaded guilty. I accept your plea of guilty is indicative of remorse.

38I accept your plea shows a willingness to facilitate the course of justice. Your plea has utilitarian value. You have saved the prosecution, the police and the court the use of the resources required to conduct a trial in this case. You must receive a significant sentencing discount for your guilty plea.

39Your counsel, Mr Newton, emphasised that you contacted the investigator in this matter from Ethiopia, and that you made statutory declarations taking full responsibility for the offending in Charge 2.  You made it clear you were solely responsible for the offending and, therefore, the account holders were discounted as being involved.

40As I understand it, you also commenced making repayments to those account holders whilst you were in Ethiopia.  Since your return, you have continued to make repayments to the Commonwealth.  The total amount owing is now $105,509.85. 

41You are currently continuing to make repayments which are taken out of your pay.

42A letter of apology was tendered from you dated 17 June 2025.[2]  In that letter, you refer to your brother’s suicide in 2007.  You say that deeply affected you and you lost your moral compass and fell into harmful behaviours including excessive drinking, gambling and neglecting your responsibilities to your family. This led to the breakdown of your relationship. You relocated to Queensland. You say you had reached low point and contemplated suicide.  You describe your departure to Ethiopia in this way: you reached out to friends who realised you needed assistance, and you then spent 12 months in a monastery in Ethiopia reflecting on your actions. You say you recognised the harm you had caused to yourself and the community. You say that when you returned you took steps to take responsibility for your actions and repay the money.

[2]Exhibit “12”.

43All of these are factors that go to the question of contrition, reparation, cooperation and, of course your guilty plea.

44The matter that cuts across your cooperation, and it is a significant matter, is that you left Australia the day after the warrant was executed and you did not return for some eight years or so.  It cannot have been a coincidence that you left so soon after this investigation had swung into action, although I do not discount that you went to Ethiopia to consider your own rehabilitation as well, the delay in this matter is substantially because you left the country.

Personal Circumstances

45You were born in Asmara, Eritrea. You are now 61 years old.

46You were the youngest of your parents’ five sons.

47Your father was a member of the legislative council in Ethiopia and worked with the Emperor, Haille Selassie. Your family led a life of privilege. Your family was ethnically Tigrayan. Your father was of Jewish faith. Your mother was Christian.

48Haile Selassie was deposed in a military coup in 1974. You were 10 years old when the communist military government took power. You and your brother, Gederet, were put in prison from 1974 until 1981. You were exposed to all manner of horrendous experiences described in Mr Newton’s submissions. You and Gederet had escaped execution because of your age.

49Your mother and your brother James also escaped.

50In 1981, at the age of 17, you were offered release from prison if you joined the military. You did that but later escaped with the assistance of a relative and joined the resistance, the Tigrayan Peoples Liberation Front (TPLF).  The relative told you that your father and two of your brothers had been executed, and that your mother had remarried. You stayed with the TPLF for years. You found out that your brother James and later Gederet were living in Australia. You contacted your brothers by phone.  You ultimately went to Sudan and registered as a refugee.

51You met your first partner there, Almaz, and together you had a son, Abel, who was born in 1991. Your son was just a few months old when you arrived in Australia as a refugee in December 1991.

52You obtained citizenship in 1994.  You also have a 31-year-old daughter, born in 1993.  She is now working as a teacher.  A few months after her birth, your wife was struck and killed by a train.  There was some suspicion it was an act of suicide. At that time, you were living in the south-eastern suburbs of Melbourne. You had become part of the Tigrayan Christian community in that area.

53In 1994, your son Abel was hit by a motor vehicle and as a result he has a serious acquired brain injury. He requires day to day support. You look after him.

54You have three other children from a subsequent de facto relationship. Those children are aged approximately 22 years old, 15 years old and seven years old. That relationship ended some time ago now.  Your 15-year-old daughter has epilepsy and ADHD and struggles at school. Your youngest son has just started school. You pay his school fees.  He also has health concerns which are set out in the letters and the extra documentation that has been tendered this morning by your counsel, Mr Newton.  You pay the school fees of both of your children who attend a private Catholic school.

55You obtained your first job in Australia as a factory worker in 1992 and then you worked as a taxi driver for 10 years, until 2005.  You worked for Centrelink and Services Australia until this offending was detected and then you left the country in 2013. 

56In 2023, you began working as a senior youth care practitioner and then in 2024, you started your current role as senior therapeutic practitioner at the Victorian Aboriginal Child and Community Agency or healthcare agency.

57You have also done much volunteer work, including working with the Australian Red Cross.  You have been a community leader involved with co-founding the Tigrayan Community Association in Victoria; and founding the Multi-Faith Association; and promoting and convening a group called the 'Homework Support Group'.

58In 2007, your older brother James committed suicide in Adelaide. James had been through heroin addiction. He left a letter behind in which he revealed that he had been forced to shoot your father and brother during the military coup in 1974.  This is said to be the catalyst for your emotional decline, alcohol and gambling problems and a withdrawal from community life.

Character references

59Multiple character references were tendered, and I will summarise those character references.

Maeregu Kazintet

60Mr Kazintet provided a reference dated 13 May 2025. He lives in Addis Ababa, Ethiopia, and he works as a socio-political adviser to the European Centre for Electoral Support and is a board member for the Ethiopian Football Federation. He was a state minister in Ethiopia. He met you on several occasions to discuss matters concerning community relations and strategic links between Ethiopia and Australia.  He says that between 2013 and 2021, you worked as a consultant with various levels of government and supported improvements in service delivery, human rights and social justice.

61He asked me to consider your past contributions and longstanding commitment to public service.

Tsegaye Mamo

62Mr Mamo is an adviser to a minister in Ethiopia. He refers to you working as a consultant in social and environmental impact assessment. He describes your contributions as meaningful and commendable. He refers to your advocacy role in promoting Ethiopian support for Australia’s bid for a seat on the United Nations Security Council. He says you have had a positive impact for both Australia and Ethiopia, and he asked me to take these matters into consideration.

Abune Selama

63Mr Selama is an Archbishop of the Tigrayan Orthodox Church in Australia and New Zealand. He has known you for several years. He is aware you were in Ethiopia between 2013 and 2021 and in that time you completed a two-year rehabilitation program.  You recovered from your personal challenges and engaged with community service activities. In 2023, you travelled to Tigray to support children affected by war. You worked alongside an NGO to distribute school materials to over 1,000 students.  A year later, you returned to Tigray and supported hundreds of people who had been affected by the war. He asked me to take into account these acts of service and compassion.

Mintiwab Tafesse

64Ms Tafesse says that she met you through mutual Ethiopian friends in the diaspora community. You assisted her by helping to bring her husband from Ethiopia to Australia.  You provided her with information in relation to the migration process and you assisted with migration issues for her mother who had been diagnosed with cervical cancer.

65She says you have made significant contributions to the Ethiopian community. She says the seriousness of the charges against you does not reflect your true character. She has always known you to be law-abiding and a respectful individual. She believes you will make positive contributions to the community in the future.

Dershaye Tessema

66Mr Tessema has known you since 1997. He met you when you were working as a settlement support worker, and he says you have supported thousands of newly arrived migrants and refugees.  He says you are a selfless person who dedicates his time to the community and is a family man. He notes that around 2008-2009, you began to withdraw from public life. He later became aware you had moved to Queensland to work for Services Australia.  He found out later you had left Australia for Ethiopia.

67He says he reached out to you and offered his support when he became aware you were undergoing a spiritual healing, which is a common cultural practice in your community.  He visited Ethiopia in the years that you were away and saw you on each trip. He says you confided to him about the offending, and you expressed remorse. He says that it is rare in your community for someone to take responsibility for their actions and he commends you for your accountability.

68He refers to your role in relation to Australia obtaining a seat on the UN Security Council. He also asked me to take into account your contributions.

Tsege Gebrayohanes

69Mr Gebrayohanes who met you in 1993 in Australia through your connections in the Ethiopian community.  He refers to you losing your wife in August 1993 in a tragic accident and that you were left to care for two young children alone.

70He is aware of your personal trauma. You shared with him that your father and two brothers were killed in the 1970s by the communist regime and that you were imprisoned.

71He was aware that in 2007 your brother committed suicide, and this deeply affected your mental health and led to a gradual withdrawal from community life. He refers to your move to Queensland after a relationship break-up and your struggles with alcohol, gambling and suicidal thoughts.

72He was involved in organising for you to travel to Ethiopia for spiritual healing.

73Mr Gebrayohanes says that today you are a devoted father, and you are the primary caregiver to your adult son, Abel.  He refers to your daughter and her health struggles with seizures and ADHD.  He refers to your youngest son having been diagnosed with autism and that you regularly attend his therapy sessions.

Asgedom Wondim

74Mr Wondim lives in Murrumbeena. He was born in the Tigray region of Ethiopia.

75He has known you since the early 1980s. He says that following the military coup in 1974, he joined the Tigray People’s Liberation Front.

76He says during his service, he met you in 1982. He says that because you were the son of a known victim of the communist regime, and because of your Jewish background, you were considered trustworthy by the intelligence unit and you were assigned the role of being an executive driver and participated in classified operations, one of which involved the secret evacuation of Ethiopian Jews in Israel.  He described that as a high-risk mission carried out in cooperation with Sudanese security forces and the Israeli Intelligence Agency.  He described you as playing a critical role in those efforts, often risking your life on the front line.

77He defected and sought asylum in 1987 and came to live in Victoria. He reconnected with your older brothers, James and Gederet, and told them that you were alive. He maintained a close relationship with you when you arrived in Australia.  He refers to your wife’s death in 1993.

78He says that based on his long association with you, he knows you to be kind-hearted, generous and selfless, and says you have made meaningful contributions to Ethiopia and your community in Australia.  He finds it difficult to reconcile the charges with the person he has known for decades. He asked me to consider your personal sacrifices and service to others.  He believes you can be a positive force within the community.

79It is clear that despite the circumstances of your childhood, adolescence and early adult years, you have, outside of this offending, led a valuable and productive life. You have been consistently employed, and you have made significant contributions to the community, both in Australia and in Ethiopia.  You do have considerable credits to draw upon in terms of your good character.

The probable effect of sentence on your family or dependants – s16A(2)(p)

80I am required by the Commonwealth Crimes Act, to take into account the probable effect of any sentence on your family or dependants.  Unlike in state sentencing, exceptional circumstances are not required for me to take this matter into account.

81In this case, a sentence of imprisonment will mean that your son, who requires considerable assistance with daily living, will be deprived of your care for any period you are required to serve.

82Additionally, you pay school fees for your younger children. This is confirmed by documents that have been tendered. You also pay school fees for the child, according to material tendered.  I do not have any real information about whether anyone else can pay these fees and whether other family members can assist in looking after your son, but I accept that a prison sentence will cause considerable hardship to your older son and difficulties for the younger children's education, and this is a matter I have taken into account in deciding the appropriate sentences.   That said, you were away from this country for eight years and someone must have assisted Abel during that period. 

83I also take into account the additional burden on you, given that you are aware that a period of imprisonment will leave your children in a difficult situation.

Sentencing principles and the nature and circumstances of the offending – s16A(2)(a)

84The prosecution submitted and I accept that all the offences in this case were serious examples of obtaining financial advantage by deception.  The maximum penalty of 10 years is a yardstick against which the facts of your offences are to be assessed.

85The prosecutor, Mr Keks, in his written submissions sets out the relevant sentencing principles for such offences. The authorities establish that general deterrence is the primary sentencing consideration and that personal factors are to be given less consideration than would otherwise be the case. The quantum of your offending and the time over which it took place are indicators of seriousness, as is the fact that at least in respect of Charge 1, the offending ceased only when you were detected.

86The practical effect of the weight to be given to general deterrence is that it is only in an exceptional case that an offender can avoid a period of immediate imprisonment.  Mr Newton submitted this is such a case.

87In respect of Charge 1, the prosecution submitted that your conduct was deliberately fraudulent, and that your claim had no basis at all, because the child (the subject of the claim) was never in your care. The prosecution submitted that the offending was persistent and involved some level of sophistication, which included providing the birth certificate and a letter purportedly from the child’s mother, which must have been a false document.  Obviously false particulars were contained in the application.  This fraud continued over three years.

88Charges 2 and 3 involved a similar modus operandi. The difference was that in relation to Charge 2, the funds were diverted to bank accounts held by people known to you, whilst in Charge 3, you diverted the funds to your own account.

89I accept the following factors demonstrate the seriousness of the offending captured by Charges 2 and 3:

a)The quantum of the money, namely $125,440.86 for Charge 2 and $63,928.11 for Charge 3.  That is a very large amount of money obtained in a relatively short period of time, nine months.

b)The offending involved the manipulation of the Centrelink system to generate arrears payments that were unknown to the customer who's accounts you used.

c)The frauds were persistent and sustained.

d)The offending itself was a breach of the privacy of those customers and exposed them to liability for criminal prosecution.  Of course, you did provide statutory declarations to absolve them for responsibility, but nonetheless they were at risk and debts were raised against each of those people whose bank accounts were used.

e)The fact that you were employed by Centrelink at the time of the offences, and that you used the Centrelink system for your own financial benefit, is a highly aggravating feature of this offending.

90Your counsel, Mr Newton, submitted that Charge 1 was a 'Good Samaritan' or 'Robin Hood'-style offence.  I have already, in these remarks, indicated that I do not accept your evidence that the money was specifically set aside for Roza Fisha and her child and I reject that submission, although I accept that you had provided some support to the child and her mother, and you provide some ongoing support to them.

91In relation to Charges 2 and 3, Mr Newton submitted this offending was not difficult to commit, and not difficult to detect.  He submitted that because the offending is easy to detect, it is not prevalent offending. As I understood Mr Newton’s submission, this went to the need for general deterrence.

92Mr Newton relied on your personal circumstances at the time of Charges 2 and 3, namely that you were in Queensland working for Services Australia, away from family and community support, going through a personal crisis involving alcohol and gambling addictions after the death of your brother James in 2007.  Mr Newton submitted that this was relevant context to the offending.

93I reject Mr Newton's submission that I should in some way view general deterrence as less important because the offending was easy to detect, and because it is not a prevalent offence for employees of Centrelink, Services Australia to divert benefits to themselves.  In my opinion, for offending such as this, the fact that you were working for Centrelink and then Services Australia is a serious aggravating feature. The breach of trust involved is very substantial. General deterrence is clearly a sentencing principle of substantial importance.

94There are factors which reduce your moral culpability, which I will discuss later in these remarks, but this offending was sustained, deliberate, involved sophistication and a substantial amount of money and was an egregious breach of trust.  Such conduct does involve high moral culpability.

95You have no criminal convictions, and you have not been in any trouble since these offences. Your conduct after the offending was detected, making repayments of the amounts involved to those customers, and the statutory declarations you supplied, as well as what you said to Ms Matthews, all indicate significant remorse.

96Most of the delay in this case has occurred because you left Australia the day after the police warrant was executed and you did not return until 2021.  But there was a considerable period after you returned to Australia in 2021, and after Services Australia became aware that you were present, some three years before the charges were issued.  I have been told, and I accept the brief was reassessed having regard to the time that had passed since the offending.  I take into account that from at least 2021, you had the spectre of these charges hanging over your head and I take into account that you have demonstrated substantial rehabilitation in the time that has passed since you committed these offences.

97Having regard to all matters, including the material relating to your rehabilitation in Ethiopia, it is in my opinion unlikely you will offend again.

98Mr Newton relied on the principles enunciated in the High Court case of Bugmy[3] which relate to a deprived upbringing. The significance of your childhood years is dealt with at some length in the psychological report of Ms Pamela Matthews dated 13 June 2024.[4] 

[3]Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

[4]Exhibit “1”.

99Mr Newton said in his submission that the background factors coalesced after the death of your brother James by suicide in 2007, and that led directly to your issues with alcohol and gambling, which were related to the offending in the case. He relied on the passages in Ms Matthews' report that chart your descent into alcohol abuse and problem gambling in the years that followed your brother’s death and the revelation in the letter that he left that he had been forced to execute your father and your brothers.

100The Court of Appeal in Wilson[5] which dealt with a situation where an appellant came to Australia as a refugee, and said this in relation to the Bugmy principles:

The principles stated by the High Court in Bugmy are important, because they recognise the enduring relationship between the effects of the profound dysfunction of a person’s early years and the moral culpability of that person for offences later committed during adulthood.

As the court stated in the case:

'Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.'

In a number of cases in which that principle has been applied, the courts have specifically accepted that the conduct of a person, who has been exposed to the kind of circumstances in which the applicant spent his early years, could not be realistically equated with the conduct of someone who has had the benefit of being raised in a stable, and what could properly be regarded as, normal circumstances.[6]

[5]Wilson v The King [2023] VSCA 276 (Priest, Niall and Kaye JJA).

[6]Ibid, [90]-[91] (citations omitted).

101Those comments are apposite to sentencing in your case and I accept the application of those principles.  I also accept Mr Newton’s submission concerning the interaction between your background and your emotional decline after your brother’s death.  This is a significant mitigating factor.  So much was acknowledged by the prosecution in their submissions.

102Mr Newton also submitted that you have psychological disorders that are realistically connected to the offending which also reduce your moral culpability, are relevant to the type of sentence to be imposed, dictate that you are not to be a vehicle for general and specific deterrence, increase the burden of your imprisonment and are likely to deteriorate during any period of imprisonment. In essence, he submitted that all principles of Verdins[7] are enlivened in this case.

[7]R v Verdins [2007] VSCA 102; 16 VR 269.

103At page 10 of Ms Matthews’ report, she says that at the time of the offending you would have met the diagnostic criteria for prolonged grief disorder, in that your brother was a close relative who had been deceased for 12 months or longer. She says that your grief was characterised by a preoccupation with thoughts and memories of your brother. She describes you as suffering intense emotional sorrow and shame related to the death of your brother. She says your symptoms are not better explained by another mental disorder, such as major depressive disorder or post-traumatic stress disorder.

104The prosecution submitted this condition does not enliven principles 1-4 of Verdins. The prosecution submitted there is nothing in the report that details impairment of function.

105In my opinion, there is a substantial overlap between the Bugmy submissions that Mr Newton made and the Verdins submission.  Mr Newton’s Bugmy submission focused on your upbringing and the death of your brother James and your consequent decline into alcohol abuse and gambling problems; and the argument in respect of Verdins seems to me to cover similar ground.

106Mental impairment as contemplated by Verdins, and a direct realistic connection between a prolonged grief disorder and the offending, are, in my opinion, lacking. The offending itself happened years after the death of your brother and I am not satisfied that in a different way from the submission about your background, that your mental state reduces your moral culpability, or in some way makes you less of a vehicle for general and specific deterrence.

107That is not to say that your psychological issues are irrelevant to the assessment of your moral culpability and the weight to be given to general deterrence, and I have had regard to those matters.

108Taking all matters into account, I am satisfied that I should to an extent moderate general deterrence, but it is still the most important sentencing principle on these facts.  Your moral culpability, although reduced by your background and your personal circumstances after your brother’s death, nonetheless reman significant for this deliberate, persistent course of conduct that netted you well over $ 200,000.

109Mr Newton also submitted that Verdins principles 5 and 6 apply; namely, that having regard to your mental state, the burden of your imprisonment is increased and that there is a significant risk of a downturn in your mental state if imprisoned. 

110In her report, Ms Matthews said this:

Of most concern is Mr Fesseha's suicidal ideation which is likely to be masked in a custodial setting.  Hence, his mental state is expected to go unnoticed and unmanaged.  The writer believes that given his developmental history, Mr Fesseha will find any time in custody quite distressing and burdensome.  It is the writer's view that incarceration is likely to open a Pandora's box of trauma and depression and that will only worsen what is a very complex mental state.

111I accept, based on that material, the application of Verdins principles 5 and 6 in this matter and they are matters of some significance.

Comparative cases

112In sentencing you, I have had regard to the comparative cases in the prosecution table which was attached to the prosecution submissions.  Mr Newton also referred to several cases, including the decision of CDPP v Alateras[8] and two County Court sentences of CDPP v Jenkins[9] and CDPP v Simpson[10].  This morning, I also referred to a recent decision of Crough[11], and in the prosecution submissions the decision of Black[12] is relied on for the sentencing principles.  None of the cases that I have been referred to involve the aggravating factor of employment with the government department from which the funds have been defrauded.

[8][2004] VSCA 214

[9][2024] VCC 1138

[10][2023] VCC 1129

[11]Crough v The King [2025] VSCA 165

[12]Black v The Queen [2022] VSCA 125.

113The cases referred provide some assistance in establishing sentencing practices for offending such as this, but, of course, current sentencing practices are a guide to the appropriate sentence, but they are not a controlling factor.

Submissions

114The prosecution submitted that a sentence of imprisonment with a Recognisance Release Order after some period of immediate imprisonment, was appropriate for offending of this objective seriousness. The prosecution submitted that ordinarily a very substantial prison sentence with a non-parole period would be appropriate, but having regard to the mitigating factors, a sentence of under three years and hence a recognisance release was within the range of appropriate sentences

115Mr Newton submitted that a sentence of imprisonment with immediate release on recognisance was a sufficient sentence having regard to the mitigating factors in this case.

116In sentencing you, I must have regard to general deterrence, specific deterrence and adequate punishment. I must also consider your rehabilitation. I must not impose a sentence of imprisonment unless there is no other option in the circumstances.

117Specific deterrence I find to be not as significant given the mitigating matters in this case and my finding that you are unlikely to offend again.

118However, having regard to the aggravating factors that I have described in these remarks, I have decided that a period of imprisonment followed by recognisance release is required.

Sentence

119In relation to Charge 1, you are convicted and sentenced to nine months' imprisonment.

120In relation to Charge 2, you are convicted and sentenced to 24 months' imprisonment.

121In relation to charge 3, you are convicted and sentenced to 14 months' imprisonment.

122Now the commencement dates are as follows.  Charge 2, which is the base sentence, commences today.  Charge 1, the sentence commences five months before the expiration of the sentence on Charge 2.  That makes a total so far of 28 months' imprisonment.  In relation to Charge 3, where you are convicted and sentenced to 14 months' imprisonment, that sentence commences seven months before the expiration of the sentence on Charge 1.

123That makes a total effective sentence of 35 months' imprisonment.  Correct?  Do you agree with that, Mr Keks?  These can be tricky.

124MR KEKS:  Thirty-five months, yes, Your Honour.

125HIS HONOUR:  Yes, good.  I order that you are to be released on a recognisance to be of good behaviour in the sum of $2,000 after serving a period of imprisonment of 11 months in this matter. 

126I indicate that but for your plea of guilty, I would have imposed a sentence of four years' imprisonment with a minimum non-parole period of two years and 10 months' imprisonment.  That is my s6AAA.

127I will make the reparation order in the terms sought by the prosecution. We will need to print out the recognisance release. Whilst that is being done, I am required under s20 of the Crimes Act to indicate the effect of the order that I have made.  You will have to serve 10 months.  You will then be released.  You are released pursuant to the recognisance that I have outlined under the condition that you are to be of good behaviour.  If you do not comply with the good behaviour condition of the recognisance, you can be summonsed and brought back to court in front of me, at which point the likely outcome would be that you would have to serve the balance of the sentence which is 25 months.  Do you understand?  That is
25 months that is suspended.  The length of the recognisance is three years.  Yes.

128MR KEKS:  Thank you, Your Honour.  Your Honour in the explanation referred to the time to be served as 10 months and I think when Your Honour announced the sentence, you said 11 months.

129HIS HONOUR:  No, I said 11 months did I not? 

130MR KEKS:  You said 11 when you announced it and then 10 when you explained it.

131HIS HONOUR:  No, it is 11, sorry.  I beg your pardon.

132MR KEKS:  Thank you, Your Honour.

133HIS HONOUR:  Eleven months, my mistake.

134MR KEKS:  And just to be - - -

135HIS HONOUR:  So it's a three-year recognisance. 

136MR KEKS:  So my instructor will draft that up.  Recognisance of $2,000, to be of good behaviour for three years and to be released after serving 11 months.

137HIS HONOUR:  Yes, after 11 months.

138MR KEKS:  Yes, Your Honour.

139HIS HONOUR:  Which leaves a total of 25 months.  If you did not comply with the recognisance - - -

140MR KEKS:  Twenty-four.

141MR NEWTON:   Twenty-four.

142HIS HONOUR:  Twenty-four.  Apologies, I am getting my maths wrong here.  It is like a suspended sentence.  All right, if you committed further offences, you would be subject to that. 

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