CDirector of Public Prosecutions v Irvine

[2020] VCC 1563

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00291

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

MARY IRVINE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2020, 10 July 2020
DATE OF SENTENCE:	29 September 2020
CASE MAY BE CITED AS:	CDPP v Irvine
MEDIUM NEUTRAL CITATION:	[2020] VCC 1563

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:                 Dishonestly obtain a financial advantage by deception from a Commonwealth entity

Legislation Cited:        Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Brown [2020] VSCA 60; Kovacevic v Mills [2000] SASC

Sentence:2 years imprisonment; released on 3 year Recognizance Release Order with $3,000 surety

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms S. Tatas	Commonwealth Director of Public Prosecutions
For the Offender	Ms K. McFarlane	McFarlane Criminal Lawyers

HER HONOUR:

1Mary Ruth Irvine, you have pleaded guilty on indictment to two charges of dishonestly obtaining a financial advantage by deception from the Commonwealth contrary to subsection 134.2(1) of the Criminal Code.  The offending that gives rise to these charges occurred over two periods amounting to approximately five years duration, during which time you failed to accurately report your income to the Commonwealth Department of Human Services and dishonestly obtained a financial advantage in the form of the Disability Support Pension.

2In sentencing you for these crimes I must have regard to the maximum sentence for the offence you have committed.  The charge of dishonestly obtain a financial advantage by deception from a Commonwealth entity carries a maximum sentence of 10 years imprisonment.

3The circumstances of your offending were set out in a document entitled, “Summary of Prosecution Opening for Plea”, dated 23 March 2020.  It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

4In short compass, during the periods of your offending you were in receipt of the Disability Support Pension (“DSP), having been assessed by the Department of Human Services (now known as Services Australia, “the Department”), as having a physical, intellectual or psychiatric condition that prevented you from working, that condition being asthma.  You do in fact suffer from this condition.  The rate of Disability Support Pension benefit payable is affected by other income received by recipients, including income from employment.  Significantly, a person is not eligible for DSP payments if they work more than 30 hours per week.

5You applied for the DSP on 17 May 2005.  You were sent a letter on 30 July of that year advising you that your claim had been granted and setting out your obligations to inform the Department within 14 days of a change in your circumstances, including a change in your employment status.

Charge 1

6On 30 January 2012, you commenced employment with Japara Administration Pty Ltd on a part-time basis as a personal care worker.  You were paid fortnightly by direct deposit into an ANZ bank account held in the name of Alan Irvine.  This was not suggested to be a false account, it was the account of your then husband.  You failed to report this employment to the Department within 14 days.

7On 6 March 2012, the Department contacted you as a result of an internal data match with the Australian Taxation Office.  At that time you confirmed that you had been working for Japara since 30 January 2012 and retrospectively reported your income to that date.  A debt was raised against you for this failure to report income between 12 February and 5 March 2012 and, as you were earning income, you were placed on fortnightly reporting requirements from 6 March 2012.

8Commencing on 19 March 2012, you then made four consecutive nil income reports.  As a result you were automatically removed from fortnightly reporting requirements as of 1 May 2012. 

9For the remainder of the charge period of some ten months, until 21 January 2013, you failed to report any income to the Department.  You ceased working for Japara on 24 March 2013.

Charge 2

10Charge 2 occurs over a period of some four years and four months. 

11On 15 November 2013 you made a further claim for the DSP.  On 28 November 2013 you were again sent a letter advising you that your claim had been granted and setting out your notification and reporting obligations.

12On 12 May 2014 you commenced employment with Yallambee Traralgon Village for the Aged Incorporated (“Yallambee”), on a part-time basis, again as a personal care worker.  You were paid fortnightly by direct deposit, initially into the ANZ bank account in the name of Alan Irvine and then from September of 2018 into another ANZ bank account held in your own name.  You again failed to report this employment to the Department within 14 days. 

13As a result of an internal data match with the ATO you were again placed on fortnightly reporting requirements on 10 June 2014.  As a result of the same data match, on 17 June 2014 you participated in a telephone interview conducted by the Department as part of what was termed an “earned income intervention”.  During that interview you were reminded of your obligations to report your income correctly.  You stated that you were employed by Yallambee but were not working more than 30 hours per week.  This was false, as you had in fact been regularly working more than 30 hours per week and continued to do so for the remainder of the charge period.

14Following this interview, and again on notice of your obligations, you falsely under-reported your income or falsely declared nil income on some 58 occasions, commencing on 23 June 2014.

15As a result of several consecutive false nil income reports you were automatically removed from fortnightly reporting requirements from 30 August 2016. 

16For the remainder of the charge period, until 24 October 2018, you failed to report any income to the Department. 

17Your DSP payments were cancelled on 23 October 2018.

18In relation to Charge 1, because of your failure to correctly report your income you were paid DSP benefits at a rate higher than you were actually entitled to.  The amount dishonestly obtained as a result was $4,000.27.

19In relation to Charge 2, because of your failure to correctly report your income, you were, for the majority of the charge period, paid DSP benefits to which you were not entitled at all, both because of the amount of income you were earning and because you were routinely working more than 30 hours per week.  The amount dishonestly obtained as a result was $104,729.64. 

20Therefore the total amount dishonestly obtained by you is $108,729.91. 

21I accept that your offending does not appear highly sophisticated, it does not involve the oft occurring aggravating features such as the receipt of multiple benefits and/or the use of false identities.  On the evidence before me it appears that your motivation was more need-based than one of sheer greed, yet that of course does not excuse your offending.  You had the opportunity for quiet reflection after contact from the Department yet chose to offend for a protracted period, particularly that reflected in Charge 2.  Your offending was not an isolated incident and it involved multiple instances of dishonesty and continued once you had been effectively warned of your need to correctly report your income.

22Your offending is not victimless either.  Rather, the burden of your offending falls on the whole community.  General deterrence is of paramount importance in sentencing and a term of imprisonment is ordinarily required to deter others from what is described as prevalent offending and in order to protect the revenue and the integrity of the social security system.

23Your offending was detected by the ATO on 17 November 2017, again by way of data match. 

24On 18 March 2019 the Department wrote to you and invited you to participate in a recorded interview and you attended for that interview on 8 May 2019.  When asked why you had not accurately reported your income you initially stated that you thought you had declared it correctly.  You later stated that you told your granddaughter to report your income and that you believed she had been doing it correctly, a position you have maintained to some degree in the psychological report and submissions made before me.  I simply do not accept that explanation.  In that interview towards the end you also stated, '[…] it's my own fault.  I'll be honest, it's my own stupid doing”, and “I can't explain any of it”. 

25Through your legal representative you explained that whilst in a relationship with Alan Irvine you were a victim of his domestic violence and that you were directed by him to place your earnings into his bank account, which he then spent on alcohol.  At various stages during the charge period you had the responsibility for two granddaughters and for your dying stepfather.  You had little or no money of your own and had to ask your husband if you needed money for bills and food.  This seems to be supported largely by what I was told today, but simply sets context for your offending; in no way does it excuse your actions. 

26Whilst a strong Crown case, you pleaded guilty to these charges at committal mention on 20 February of this year, the earliest opportunity do so. Section 16A of the Crimes Act 1914 (Cth) obliges me to take into account the fact of your having pleaded guilty, and I do so.

27There is clear utilitarian value in saving the community the time and expense of a trial.  These factors will be taken into account in your favour.

28Your counsel submitted that your early plea of guilty is also evidence of remorse.  I am less convinced of that aspect but on overall balance I do accept that you regret your actions.

29Whilst your offending was detected in November of 2017, you were not contacted for interview until March of 2019 when you were on notice of the investigation.  You were charged in October of that year and, as I have said, pleaded guilty in February of this year.

30Your plea hearing was initially listed in the County Court sitting in the Latrobe Valley on 20 April 2020 but was unable to take place on that date due to the onset of the COVID-19 pandemic.  The matter instead came before me on
27 May 2020, at which time your plea commenced and the matter was adjourned to 10 July 2020 for further plea.  That hearing was also vacated in order that your legal representatives could obtain further medical material.  There has been some delay between your date for interview and then charging.  The hearing has therefore been a burden over your head for at least 18 months, a factor I take into account in a general sense, bearing in mind this matter could not be reached in April of this year.

31In addition, the period provides the opportunity for the court to assess your prospects for rehabilitation.  Despite the protracted nature of your offending over two separate and distinct periods, it would appear there have been no further offences since October of 2018.  This indicates at least some sanction from and deterrence by your experience to date.

32I turn now to your personal circumstances.  Tendered on your plea was a psychological report authored by Dr Aaron Cunningham, psychologist, dated 25 May 2020.  In that report, Dr Cunningham helpfully sets out much of your personal background.  I note that his report was not the subject of challenge.

33You are now 56 years of age.  Observationally, you present as much older than your stated years.  At the time your offending commenced you were aged 47.  You have no prior criminal history although your prior good character carries less weight in the context of this type of offending.

34You were raised in Traralgon by your mother, Kay, and stepfather, Wally.  You did not know your biological father, who left home when you were very young.  Your stepfather, Wally, also left home during your upbringing and your mother repartnered, marrying Robert, who you considered to be a father figure.  You have one older brother, two younger half-brothers and one younger half-sister.  During your upbringing you were required to assist in the raising of your younger siblings. 

35In materials before me you report being sexually assaulted by your older brother.  You also told Dr Cunningham that your stepfather attempted to sexually assault you when you were aged 14 years and that you were not believed by your mother.  You stated to Dr Cunningham that your mother was also physically abusive and these factors, in combination, impacted on your relationship with her.  You started running away from home at the age of 16 years and indeed left school around the same time. 

36In terms of your education, you attended Kosciusko Street Primary School and Kildare College to Year 10.  You described being a slow learner and being bullied by other students.  School for you was not a pleasant environment.

37You subsequently worked in an abattoir and a fish and chip shop.  In your later years you attended TAFE and obtained a Certificate III in Aged Care in 2011 when in your 40s.  You have maintained personal care work for the past five years. employment you seem to relish.  You currently work approximately eight shifts a fortnight in an aged care facility where you are well regarded.  I was told today that there has been some reduction in your shifts due to COVID-19 and your own health. 

38You have commenced reparation to the Department and orders will be made today requiring that you continue making reparation.  Independently of your sentence for this matter, the payment of that debt will be understandably slow and a lengthy and ongoing reminder of your wrongdoing.

39You left home at the age of 18 and became pregnant with your first child at 19 with your then partner, Paul.  You reported to Dr Cunningham that Paul was emotionally and physically abusive and regularly unfaithful during your relationship, which spanned some 16 years.  You recall suffering black eyes and being threatened with a rifle.  You have four children from that relationship: Trevor, Brian, Kathleen and Gerard, who are now aged in their 30s and have children of their own, giving you a collective of some 15 grandchildren.  Your relationship with Paul ended in 1999.  You are said to have a good relationship with each of your children save for Kathleen, who physically assaulted you in 2014.  You are so ashamed of your offending that you have only told your son, Trevor, of your current predicament.

40You commenced a relationship with Alan Irvine in 2009 and married in 2013.  Unfortunately, this was your second relationship to involve family violence, this time in the form of emotional and financial abuse which can be just as insidious and cumulative in its effect.  He was an alcoholic, you were not permitted to maintain many of your family relationships or friendships.  You were socially isolated by him and constantly belittled.  You separated in March of 2019 and it is only in recent times that you have started to get your life back on track and to rebuild relationships that had been lost to you because of that relationship, including that with your mother.  This now offers you additional support and is capable of adding favourably to your future prospects. 

41You now live with and provide emotional and financial care for your 17-year-old granddaughter, Tanesha, who has lived with you since 2017 but to whom you have provided care on and off since she was born.  Tanesha herself has written a letter to the court.  She describes you as caring and compassionate and to taking her in when she had nowhere else to go.  You are particularly concerned about her wellbeing should you be incarcerated.  Whilst I accept that other family members are likely to assist with Tanesha's ongoing care should they be called upon to do so, I accept that your concern for her would weigh heavily upon you given the role that you have played in her life.

42In Dr Cunningham's opinion you present with major depressive disorder, stemming from a lack of emotional connection and support in your childhood.  He opines that your early experience of sexual assault by your stepfather and struggles at school in the context of learning impairments negatively impacted on your self-esteem and led to perceptions of hopelessness and failure, which mindset was perpetuated by your negative experiences within the context of your romantic relationships.  Your depressive mindset regarding your tendency towards hopelessness and feeling overwhelmed contributed to a lack of judgment in respect of your offending behaviour.  In his opinion you also met the criteria for generalised anxiety disorder and persistent depressive disorder.

43Testing also revealed a level of intellectual impairment.  Dr Cunningham's report goes some way to explain the ongoing nature of your offending and the role of your self-perception at the relevant time.  The circumstances of your domestic relationship and Dr Cunningham's overall assessment allows, in my view, for some reduction of moral culpability in relation to your offences.

44Your counsel submitted that this assessment also enlivens limb five of the principles set out in R v Verdins & Ors (2007) 16 VR 269, in that a given sentence will weigh more heavily on you than it would on a person in normal health. The Crown take no issue with this submission.

45Today your legal representative also submits that limb six, the adverse effect on a prisoner's mental health has a tendency to mitigate punishment, is also available.  Whilst the connection is not made clear in Dr Cunningham's report, I do accept that the combination of your established mental health conditions and your extreme anxiety due to your physical health does have a role to play.

46Also tendered on your plea were a number of character references.  I have already referred to that written by Tanesha.  Deborah Thomas has known you for some nine years, five of which she has worked with you on nightshift at Yallambee Aged Care.  She refers to being aware of your regular need to be admitted to hospital due to chronic respiratory illness.  She was also aware of your husband, Alan, preventing you from having your own income and to seeing you in tears when you had difficulty paying rent and other bills.  She describes you as having become very isolated in your relationship, with limited contact with friends and family.  She otherwise describes you as kind and trustworthy.  You spoke to Ms Thomas of your remorse.  A reference from Sheila Beattie makes similar observations.  Overall, the reference material tendered attests to your caring and compassionate nature, describes your mental conditions and the financial abuse and social isolation you experienced in the context of your relationship with your husband.

47In terms of the medical evidence, your counsel tendered voluminous medical records dating back as far as 2000, including patient health summaries, hospital admissions and discharge summaries, GP management plans and medical certificates to evidence your history of chronic asthma and chronic obstructive pulmonary disease.  It is submitted that these conditions render you extremely vulnerable to COVID-19.  A report authored by Associate Professor Natasha Smallwood, consultant respiratory physician, dated 3 December 2019 confirmed longstanding asthma with poor control of that condition. She also referred to significant anxiety and further testing was recommended. 

48During the intervening period a report has now been provided authored by Dr Kasun Vithanage, your general practitioner for the last three years.  His report is also unchallenged.  He confirms a range of presenting medical conditions which include migraine, asthma, chronic obstructive pulmonary disease, sleep apnoea, hypertension, unstable angina, gastro-oesophageal reflux disease and anxiety.  You are presently medicated for your respiratory illnesses, gastric reflux, blood pressure and for your depression and anxiety.  In Dr Vithanage's report dated 18 June 2020 he confirms that out of your medical conditions your respiratory illnesses are the primary concern and that they are not under good control.

49Materials before me would indicate that you have required emergency hospitalisation in June and September of this year due to respiratory problems.  You indeed have a history of such presentations.  According to
Dr Vithanage you were having regular visits with your general practitioner, frequent visits to the emergency Department of your local hospital and long hospital admissions due to your ongoing respiratory problems.

50You have recently attended upon the respiratory clinic of the Royal Melbourne Hospital and further referrals have been recommended.  You have had two online meetings which of course are not ideal.

51Dr Vithanage opines and I quote:

“Ms Irvine is a high risk patient for COVID 19 means she can get serious complications if she catches COVID 19, including significant respiratory distress which require ICU admission / intubation or even death.  Obviously, her risk for COVID 19 is high if she is in a confined space with many people.'

52You still reside in Traralgon and at the moment have available to you a trusted practitioner and a local hospital familiar with your presentations and which is in close proximity to where you live.  This allows for a quick response when deemed necessary, as indeed it has been twice in the last few months.  This ready availability of trusted medical care is also capable of alleviating the understandable anxiety associated with your physical health. 

53I have had recourse to the recent decisions of this pandemic and its relevance to sentencing.  The first of those is contained in the decision of R v Brown [2020] VSCA 60 where Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated:

“In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”

54There simply is no evidence that COVID-19 has entered the prison system.  As to date quarantine measures appear to have been effective.  I must also accept that the prison system will be capable of responding to your medical needs.

55However, the risk of contracting COVID-19 within the prison system remains a source of anxiety for an offender and is capable of making prison more burdensome and is in your case relevant to sentence.  It is especially significant for offenders who are older or otherwise at a higher risk of
COVID-19 and I accept that this is your situation.

56The COVID-19 pandemic has not reached its conclusion.  I am mindful that the experience of serving a custodial sentence will be more onerous at this time than would otherwise be the general experience because, firstly, the change of the custodial experience as well as the associated anxiety.  In your particular case it is reasonable to conclude that you who suffer from long-term respiratory illness, which is also described as unstable, will experience a higher level of stress, anxiety and even fear of the potentially fatal consequences should you be infected with COVID-19 than would otherwise be the case for a younger and healthier prisoner.  You would also be anxious of the ability of the prison system to respond to any emergency given the quick response you have been fortunate to receive within your local area.  These are factors to be taken into account in your sentencing.

57Your counsel submitted that your prospects of rehabilitation are very good, positive and real and pointed to your early plea of guilty, admissions made in interview and the absence of subsequent offending.  I do accept the assessment of your future prospects and in my view, and in consideration of other factors to which I will refer, your prospects of rehabilitation are very good.

58Whilst still relevant, I accept there is a basis on the evidence before me to give less weight to general deterrence and protection of the community. 

59The federal sentencing regime is set out in Part 1B of the Crimes Act 1914. Under that regime the court must impose a sentence that is of a severity that is appropriate in all the circumstances. That requirement must be read together with the need to ensure that a person is adequately punished for the offence. Section 16A(2) sets out a non-exhaustive list of factors that the court must take into account where they are relevant and known to the court.

60Of particular relevance in your case are the nature and circumstances of the offence, general deterrence, specific deterrence and prospects of rehabilitation, loss resulting from the offence, contrition, plea of guilty, the need for adequate punishment, your character, antecedents, age, means and physical and mental conditions, and to a lesser degree the probable effect on any of the person's family or dependants.

61The Crown submitted that a term of immediate imprisonment is required in your case.  Counsel for the Commonwealth properly referred to the extensive case law to that effect, in that imprisonment is ordinarily warranted in cases of sustained and deliberate welfare fraud, citing specifically the matter Kovacevic v Mills [2000] SASC 106 in which the Full Court of the Supreme Court of South Australia stated:

“[…] an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required.  This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending.  The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions.  But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender.  Also, in an appropriate case, there may be room for the exercise of mercy and leniency.”

62The Crown also submitted that in sentencing for offences of this kind, general deterrence is of paramount importance.  That submission is without question. 

63I have been assisted by the sentencing submissions and two tables of cases provided which provide a “yard stick” with which to assess the possible range of sentences available.  There is obviously a wide range of offending conduct which constitutes the offences with which you are charged and a myriad of personal circumstances pertaining to the individual offenders.  Overall, the cases with which I have been provided remain consistent, and I appreciate consistency is important, with the general proposition that, subject to particular circumstances of the case, a sentence of immediate imprisonment is ordinarily likely in cases of sustained and deliberate fraud of the welfare system.

64Your legal representatives submitted that gaol was not the only available disposition and that a lengthy community corrections order would satisfy the punitive elements of sentence and made available in respect of federal offences pursuant to s.20AB of the Crimes Act.  Alternatively, and given greater emphasis today, was that if a community corrections order was not available you should be released on a recognizance release order.

65I am mindful also that gaol remains a situation of last resort.  In my view, the combination of your unique personal circumstances, particularly those relating to your health, are such as to take your situation from the norm where an immediate term of imprisonment for offending of your gravity will be required.  In my view, and in the circumstances of your case, there is a place for both mercy and for leniency. 

66I do propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of the same or similar character.

67I must also and do bear in mind the principles of totality and proportionality. 

68On the two charges the subject of the indictment you are convicted and sentenced to imprisonment for two years commencing today. 

69I make a recognizance release order in your case. I order your release under s.20(1)(b) of the Crimes Act forthwith upon you giving security by recognizance of $3,000 to comply with the condition that you be of good behaviour for a period of three years.

70The purpose of these orders is to punish you for the crime you have committed.  The effect of my orders is that you will have a sentence of two years hanging over your head from today for a period of three years.  During that time, if you commit any other offence punishable by imprisonment you risk being required to serve that two years of imprisonment.

71Pursuant to s.6AAA of the Sentencing Act, I state the sentence I would have imposed on you but for your plea of guilty to be one of four years imprisonment with a non-parole period of two years and ten months. 

72In addition, I make the reparation order pursuant to s.21B of the Crimes Act in the sum of $107,735.11.

73I will just double check that I did not miss anything, Ms Tatas.

74MS TATAS:  Thank you, Your Honour.

75HER HONOUR:  Thank you.  Ms McFarlane, documents will need to be sent through for your client to sign.

76MS McFARLANE:  Thank you, Your Honour.

77HER HONOUR:  I cannot tell you how long that is likely to take.

78MS McFARLANE:  It will be at the mercy of the registry, Your Honour, and we are happy to wait.  There is no one in the courtroom here but I am sure someone down in the registry will assist.

79HER HONOUR:  Yes, as indicated your client will be required to wait to sign those documents.  Ms Tatas, can I request humbly that if available your instructor can provide a draft unless that is an unusual request.

80MS TATAS:  Yes, I have one.  Is that the 21B or the reparation?

81HER HONOUR:  The 21B.

82MS TATAS:  Were they not e-filed?

83HER HONOUR:  The reparation order has been e-filed.  We have only got the reparation order as I understand it.

84MS TATAS:  Right, I will get onto my instructor, Your Honour.

85HER HONOUR:  If that is an unusual request please let us know.

86MS TATAS:  I would not think we actually have hard copies in court.

87HER HONOUR:  Yes, but no more, not in these current electronic times.  Thank you to each of you for your assistance.  If there is nothing further from either of you at this stage I will close the court until 10.30 tomorrow.  Otherwise as indicated, Ms McFarlane, please remain with your client in an appropriate location for those documents.  We will try and update you as to when they are likely to come through.

88MS McFARLANE:  Thank you, Your Honour.

89HER HONOUR:  Thank you.

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