CDirector of Public Prosecutions v Gabrijelic

[2020] VCC 1686

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00730

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

NARDI GABRIJELIC

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2020
DATE OF SENTENCE:	19 October 2020
CASE MAY BE CITED AS:	CDPP v Gabrijelic
MEDIUM NEUTRAL CITATION:	[2020] VCC 1686

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Dishonestly obtain a financial advantage by deception from a Commonwealth entity – Falsely stating a claim for Carer Allowance and Carer Payment – Serious prior offences - Recognizance release order – Immediate imprisonment - Reparation order -

Legislation Cited: s.134.2(1) Criminal Code (Cth) - s.16A s.16F s.20(1) s.21B(1) Crimes Act 1914 (Cth)

Cases Cited:Veen v The Queen (No.2) (1988) 164 CLR 465 - Warden v The Queen [2019] VSCA 2 – DPP v Bourke [2020] VSC 130 – R vVerdins (2007) 16 VR 269 - O'Neill [2015] VSCA 325 - Brown [2020] VSCA 212

Sentence:Total effective sentence (Federal) is two years and 6 months with 18 days declared as pre-sentence detention. Order that pursuant to s.20(1) Mr Gabrijelic be released after serving 18 months imprisonment upon entering a recognizance in the sum of $5,000 to be of good behaviour for a period of twelve months. Order Mr Gabrijelic pay reparation in the sum of $60,948.28 to Services Australia.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms A. Smith	Commonwealth Director of Public Prosecutions
For the Accused	Ms S. Wallace	Stary Norton Halphen

HIS HONOUR: 

1Mr Gabrijelic pleaded guilty on 1 October before this Court to one charge on a Commonwealth indictment for breach of s.134.2(1) of the Criminal Code (Cth).  Mr Gabrijelic was born on 24 December 1952.  He is currently an aged pensioner.  By way of history, he has had numerous labouring jobs.  He is aged 68 and this offending took place between when he was aged 62 through to the age of 65. 

2The offence to which he has pleaded is one of dishonestly obtain a financial advantage by deception from a Commonwealth entity.  The period in which that took place was from 5 December 2014 through to 29 August 2017, approximately two years and eight months.  It is a rolled up charge and essentially it involved you, Mr Gabrijelic, getting a carer's allowance when you were fully employed. 

3The penalty provided by Parliament indicates the seriousness of such offence being 10 years imprisonment and or 50 penalty units.  From the 1^st of July 2014 you had been employed full-time with Consolidated Property Services company and you were receiving gross per fortnight $1,861.  In the period of your criminality, you earned $150,794.18.  The relevant declaration which founds your dishonesty was made by you on 5 December 2014, Exhibit F in the plea. 

4You were overpaid from 15 January 2015 in the sum of $76,420.95 from Commonwealth resources. 

5I have been asked to make a repatriation order.  That repatriation order now will be for $60,948.28.  Insofar as that order is concerned, it is noted that you have entered into a repayment plan from your aged pension.  Now that you have been remanded unfortunately that aged pension ceases and therefore for the period that you are in gaol that arrangement made with the Commonwealth will not be able to be effected. 

6As roughly estimated by your counsel, that arrangement will take approximately 10 years to repay the Commonwealth the funds that you dishonestly obtained. I do however make the repatriation order sought pursuant to s.21B(1) of the Crimes Act. 

7Insofar as your criminality is concerned, it is illuminated in the legal sense by your prior offending.  You in fact have nine previous offences for obtaining funds inappropriately from the Commonwealth by way of Newstart payments.  You have two prior occasions in which you have been convicted and repatriation orders have been made. 

8The first of those occurred in May of 1999 when you faced five charges.  A repatriation order was made on that day of $17,237 and you were sentenced to a period of imprisonment of six months' gaol to be released immediately and thereafter a 12-month recognizance release order.  The circumstances of that offending involved you benefitting over one year from the payment of Newstart payments under the Commonwealth scheme in circumstances where you did not declare wages, that you were also receiving at the same time. 

9The next conviction that you have is recorded in March of 2001.  On this occasion, there were four offences of obtaining a Commonwealth benefit.  The repatriation order in that instance was made in the sum of $16,366. You were given imprisonment for nine months. There was six months to serve and a recognisance release order for 12-months.  The circumstances in regard to that matter were that you received those payments by way of the Newstart scheme over a period of some two years by way of presenting a false identify to the Commonwealth organisation. 

10As I say, those priors illuminate your offending.  It is very important for me to tell you that you do not come before this Court to be sentenced again for those crimes. However, they are of importance and I want to read out as a matter in law how they come to be important.  The principles were detailed by the High Court in Veen v The Queen (No.2) (1988) 164 CLR 465, [457] where the High Court said that prior offences are relevant to a sentence, but are not to be given a weight which is disproportionate to the gravity of the instant offences for which I am sentencing you on, Mr Gabrijelic.

11Such priors, the Court said, were relevant to show whether the instant offences of which I am sentencing you on are an uncharacteristic aberration or whether the offender has manifested in such an offence a continuing attitude of disobedience of the law.  In such a case, retribution, deterrence and protection of the community may all indicate a more severe penalty is warranted.  It is legitimate to consider antecedent criminal history where it illuminates the moral culpability of the offender or shows a need to impose, condone punishment to deter the offender and others. 

12In this regard I have analysed the cases submitted by both parties, and in particular as detailed in the analysis in the prosecution submission Exhibit B, at [57] to [59]. I want to in particular refer to the determination of the Victorian Court of Appeal in Warden v The Queen [2019] VSCA 2, the analysis of the relevant cases undertaken from [35] to [39], and the principles detailed by the Court in this type of sentencing, [39] and [40].

13The authorities demonstrate that in cases such as this the following issues are of importance for this Court to consider.  Firstly, the protection of the community purse, a purse that obviously is limited given the demands made on it.  Secondly, the fact to be recognised that by your behaviour, given its term and degree, such represents an attack on such pension system provided for people in our community. Thirdly, the difficulty of large bureaucratic administrations administering such a system; and fourthly, aligned with such difficulty, the difficulties of detecting abuse in the system.

14As detailed by the prosecutor, your offending is not only lengthy by way of time but a substantial sum obtained and represents a gross abuse of the system provided by the Commonwealth Government, which calls for a period of imprisonment, given the Veen principles.  It was of course the submission of the prosecutor that those circumstances detailed by me and your criminality are such that a period of imprisonment was called for, and that submission is one with which I agree.

15As stated in Exhibit 1, which is the written submissions on your behalf, it was the submission of Ms Wallace that a recognisance release order should be passed upon you and a period of imprisonment if thought appropriate, but that you should be released from such period of imprisonment immediately.

16I indicated such proposition did not appeal to me given the circumstances of the crime, and that is still my position today.  The following were tendered on the plea: 

a)Exhibit 1, the defence submissions of 28 September 2020;

b)Exhibit 2 the report of Dr Cidoni dated 16 August 2019;

c)Exhibit 3 the report of Dr Kumar, dated 23 January 2020;

d)Exhibit 4 the report of Dr Thomas dated 25 September 2020;

e)Exhibit 5 the email from defence counsel Ms Stephanie Wallace, attaching the supplementary answers in regard to Dr Thomas dated 29 September 2020; and

f)Exhibit 6, tendered today, which is the additional page report in regard to Dr Kumar.

17Insofar as the propositions put to the Court, the first matter on your behalf, Mr Gabrijelic, was Ms Wallace's submission that I should take into account by way of mitigation your plea of guilty, which I certainly do.  She noted it to be an early plea in the circumstances.  It is also a plea made in the particular circumstances that we are confronted with in this community of the COVID-19 issue. She relied on the principles of your plea not only being utilitarian in the sense that it saved the Commonwealth the difficulties of prosecuting by way of a trial, but also was made in the particular circumstances as were detailed in Bourke [2020] VSC 130, [32].

18Ms Wallace also submitted that by your plea you are remorseful and facilitating the course of justice and I accept all of those matters in mitigation. 

19The second matter was the issue of the pandemic, that any gaol sentence made by this Court will be particularly difficult for you firstly as has already been evidenced today by the circumstances of you being in isolation for 14 days.  And then after that period, as best as I can understand the prison system from the regular bulletins the Courts receives, it seems to me nearly every prison is being subject to at least a half a day lockdown.  You are not able to receive visitors and indeed, the reception of programs is very limited because of the strict systems being taken in the gaol.  They all present particular difficulties for you of service of any sentence and I take that into account. 

20I indicated when I started these remarks, you have today repaid a sum which now leaves the outstanding sum of $60,948.28.  I take by way of mitigation the fact that you have consented to the repatriation order made, the fact that you have entered into an agreement with Centrelink to repay the sum from your aged pension.  I take your willingness to enter into such arrangement and to make the payments you have to date as an indication of your remorse and as a matter of mitigation.

21Your counsel also submitted that there is hope for your rehabilitation.  We heard today of appropriate treatment that may assist your rehabilitation.  I must say given your history, I am very guarded about your prospects for rehabilitation, as also was Dr Cidoni, at [53] of Exhibit 2. 

22Your counsel also sought to rely in particular on principles 5 and 6 of Verdins (2007) 16 VR 269, [32] given your medical condition. In regard to that condition, I want to go into the reports that have been tendered. As I said, the first report was Exhibit 2 of Dr Anthony Cidoni who is a forensic psychiatrist and his report or his assessment was made on 19 July 2019 and his report is dated 16 August 2019.

23At [28], he notes under your psychiatric history that you have a longstanding history of depression.  That goes back apparently to the end of your relationship with your children's mother some 22 years ago, which seems consistent with what we have heard from Dr Thomas.  Apparently, it has worsened again more recently when your wife passed away prior to 2019.  He notes at [47] your concern as to imprisonment given your issues of self-harm and suicide risk and at [49], says this:

'He has also suffered from psychosis, namely paranoia, which could form part of a major depression rather than a separate disorder such as schizophrenia.  I note he is on a low dose of anti‑psychotic medication.' 

24At [50], Dr Cidoni said:

'In my opinion, he has a full hand of major depressive symptoms that are severe and pervasive and which significantly affect his functioning.'

25At [51], he said:

'In relation to the impact of his conditions on his actions, I do not believe that they affect his ability to understand wrongfulness.  I do think that they affect his ability to think clearly as his thinking is dominated by depressive and paranoid thinking and they do interfere with him making appropriate judgments, for example, his plan to suicide once his face is tattooed.'

26And then at [52]:

'In relation to contribution to offending behaviour, I do not believe there is a causal link.' 

27I will not go on in regard to that.  Insofar as incarceration, Dr Cidoni notes a high risk of suicide and deterioration. 

28The next report was Dr Kumar who is also a consultant psychiatrist and in fact your treating psychiatrist.  There are two reports of his as I have indicated, Exhibit 3 and today's report tendered, Exhibit 6.  There is no difference between those reports.  He had been treating you since October 2013 and there does not seem to be much difference to what I have detailed, except it is noted on p.4 of his report he is asked a question as to his opinion as to whether imprisonment would be more onerous for you given your condition and diagnosis and you said it would be.  Dr Kumar noted your current treatment, which was set out, and also thought because of your appearance and perhaps hairstyle and behaviour that you may well be vulnerable to be targeted in a prison setting.

29There was another letter attached which detailed your treatment regime.  And as I have said, exhibited today was Exhibit 6 which was the update letter forwarded by Ms Wallace's instructors.

30I then come to Exhibit 4 which was the written report of Dr Thomas, who has today given evidence.  That report is Exhibit 4.  It is dated 25 September 2020.  At [32], Dr Thomas notes the findings of Dr Kumar and notes the concern of Dr Kumar as to imprisonment being more onerous for you. 

31At [68], Dr Thomas says:

'There is no evidence available to suggest Mr Gabrijelic was depressed at the time he completed his application for carer payment or when he lodged his application.  I am of the opinion that while Mr Gabrijelic has suffered recurrent depression for many years prior to the offending, his depressive disorder did not contribute to the offending.' 

32I note in particular that in his oral evidence today Dr Thomas is of the same view.  At [71] of the report, Dr Thomas said:

'In my opinion, given his severe depression a custodial sentence would weigh much more heavily on Mr Gabrijelic.' 

33This morning, we have also heard orally from Dr Thomas and I thank him for making himself available.  A review was conducted upon Mr Gabrijelic on 9 October following him being remanded.  Dr Thomas’s analysis of Mr Gabrijelic’s condition has not changed.  Dr Thomas noted a slight change in increased medication of Pristiq.  He noted some particular symptomology which could be the result of the bleak outlook of gaol and your views about why he is in gaol, and delusions as to the actions taken by Government, in particular about him and in particular those in the Western suburbs. 

34Insofar as your future is concerned, Dr Thomas noted that when your are released into the community, there would be a need for particular treatment to try and assist you in coping with life, although such treatment as he said today would be limited insofar as his risks of impacting on his risks of recidivism and he saw no reason why reengagement with Dr Kumar could not take place.

35Insofar as that history is concerned, I accept the propositions put after analysing the evidence with the rigour that I am required to pursuant to O'Neill [2015] VSCA 325, [68] and Brown [2020] VSCA 212, [56] referred to by counsel.

36I accept on the evidence that it is demonstrated that Mr Gabrijelic being sentenced to a period of gaol would find such sentence more onerous than the normal person in the community.  And I also accept that there is an increased risk for him.  Insofar as that risk is concerned, the Court can only rely upon the custodial authorities to ensure that the regime of appropriate medication is maintained. It would be my intent to provide both the report of Dr Kumar and Dr Thomas and the outline of Mr Gabrijelic’s current medication to the authorities. 

37Ms Wallace submitted that taking into account all of those considerations, in particular the provisions of s.16A of the Crimes Act 1914 (Cth), while at no time did she resile from her acceptance of the seriousness of this crime, but in the totality of the considerations that while a period of imprisonment should be imposed pursuant to s.20(1) Crimes Act 1914 (Cth), such period of imprisonment should be such that it would involve no further imprisonment than today and that an immediate release from imprisonment should take place upon a recognizance release order being made for an appropriate period. 

38Giving consideration to all of the factors, as I indicated during the plea I was not enamoured with such submission, and I can confirm that I still am not, despite the provisions of s.17A of the Act.  Given the seriousness of this offending, illuminated as it is in the manner that I have detailed by the serious prior offences of Mr Gabrijelic, there is no alternative but for Mr Gabrijelic to serve a period of immediate imprisonment.

39Mr Gabrijelic, I would normally ask you to stand now but you stay where you are because of the situation. 

40Pursuant to the provisions of s.19AC of the Act, you will be for this offence convicted and imprisoned for a period of two and a half years.  I order that in regard to that sentence, you can be released on a recognizance release order after the service of 18 months.  That recognizance release order will be on your own recognizance in the sum of $5,000. 

41I also declare pursuant to the Crimes Act that the period of 18 days pre-sentence detention, be deemed service of this sentence and a declaration to that effect be recorded in the records of this Court.

42I have made the reparation order. 

43Pursuant to the provisions of s.6AAA, on the presumption it applies to a Commonwealth sentence, can I indicate to you, Mr Gabrijelic, what Parliament requires me to indicate.  That is, had you not pleaded guilty, the period of imprisonment that I would have imposed upon you would have been a period of three and a half years. I do not want to take that matter any further except to say obviously that would have meant that there would have been no recognizance release order possible for you.

44It is necessary under s.16F Crimes Act (Cth) for me to explain to you your sentence.  Essentially, your sentence is this.  You are sentenced to two and a half years gaol.  You have now served 18 days of that period of imprisonment.  You must serve a period of 18 months less 18 days before you will be then released on a recognizance release order for the balance of the period imposed, being 12 months.

45Firstly, does either counsel have any queries as to any of those matters?

46COUNSEL:  No, Your Honour.  

47HIS HONOUR:  Ms Wallace, what do you want to do?  Do you ‑ ‑ ‑ 

48MS WALLACE:  If I may have a moment with him just to confirm that I will be - just explain what Your Honour said very briefly to him but also then I will confirm with him that  I will have a follow-up conversation with him in private. 

49HIS HONOUR: Yes, well, there are two things, because of the obligation under s.16F which I have done, I would appreciate if you again confirm the details of the sentence with him.

50MS WALLACE:  Thank you, Your Honour. 

51HIS HONOUR:  And finally, with the reparation order, Ms Wallace, the provisions are such that you can indicate on his behalf his consent, he has already indicated it but formally, we need it because that will mean we do not need him to sign the order if you indicate to him when you come back his formal acceptance of such order. 

52MS WALLACE:  Thank you, Your Honour. 

53HIS HONOUR:  Right.  Yes, well, Madam Associate, let us hope the system works.  You will put all but for Ms Wallace and Mr Gabrijelic, into the ‘lobby’ and bring us back when it is appropriate.

54ASSOCIATE:  Yes, Your Honour.

55HIS HONOUR:  Thank you.  Yes, Mr Tipstaff.

(Short adjournment.)

56HIS HONOUR:  Yes, Ms Wallace ‑ ‑ ‑ 

57MS WALLACE:  Thank you, Your Honour. 

58HIS HONOUR:  ‑ ‑ ‑ your client is happy to enter into or has indicated that he will enter into the repatriation order?

59MS WALLACE:  Yes, Your Honour.

60HIS HONOUR:  Madam Associate, I think that means you do not have to - given that consent indicated - you do not have to send the order for his signature to prison, is that right?

61ASSOCIATE:  Sorry, the reparation or the recognizance release order?

62HIS HONOUR:  Yes.  Both.  The reparation order and it can be signed and then the recognizance release order provided it is indicated that he consents to that, it does not have to be sent to him at prison, is that right?

63ASSOCIATE:  Yes, so the reparation order Mr Gabrijelic does not have to sign. 

64HIS HONOUR:  No. 

65ASSOCIATE:  The recognizance release order he does not have to sign.  He can just give verbal consent and we can just note that on the order.

66HIS HONOUR:  Thank you.  Ms Wallace, in regard to that recognizance release order, does your client consent to that?

67MS WALLACE:  Yes, Your Honour.

68HIS HONOUR:  Thank you.  All right.  Thank you both for your assistance, much appreciated.  Any other matters, Madam Associate?

69ASSOCIATE:  No, Your Honour.  Thank you.

70HIS HONOUR:  All right.  Yes, Mr Tipstaff.  Thank you.

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