CDirector of Public Prosecutions v Kingman
[2018] VCC 2057
•5 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-02303
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHONDA KINGMAN |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2018 | |
DATE OF SENTENCE: | 5 December 2018 | |
CASE MAY BE CITED AS: | CDPP v Kingman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2057 | |
REASONS FOR SENTENCE
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Catchwords: Obtaining financial advantage by deception.
Sentence: Recognizance release order.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director | Mr M. Challen | |
| For the Accused | Mr P. Matthews |
HIS HONOUR:
1 You have pleaded guilty to a charge of obtaining a financial advantage by deception contrary to section 134.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for ten years.
2 At the time that you pleaded guilty to this offence you admitted a prior criminal record for the same offence. You incurred that conviction at the Melbourne Magistrates’ Court on 23 November 2007. Although no conviction was then recorded against you, you were nonetheless then placed on a 12 month good behaviour bond and you were ordered to pay compensation and costs to the Commonwealth.
3 The prosecution case against you on the charge for which I now must pass sentence is summarised in a Summary of Prosecution Opening dated 16 May 2018. That document was read in open court by the prosecutor Mr Challen and your counsel Mr Matthews accepted that the summary was accurate, and forms a proper factual basis upon which I can proceed to pass sentence upon you.
4 In those circumstances it is not necessary that I here repeat in detail all the circumstances of your offending but will do so in an abbreviated way. These sentencing remarks need to be read, however, in the light of what is contained in the prosecution opening.
5 The charge is a rolled up charge and embraces your offending over an 11 year period between 11 October 2002 and 1 November 2013. During that time you filed three applications for Newstart Allowance that contained false information regarding your ownership of real estate. By this means you obtained $94,897.33 that you were not entitled to.
6 In 2002 you made a claim which stated that you had no real estate when, in fact, you owned a property in Brighton East. In 2006 you also made a claim which stated that you owned no real estate when in fact you owned properties in Brighton East and Caulfield South. A later claim in 2010 repeated that you had no real estate when in fact you continued to own properties in Brighton East and Caulfield South.
7 Self-evidently, your offending, extending as it did over 11 years and involved you making three false applications, is a serious example of this kind of offending. This kind of fraud is prevalent and impacts upon public finances such that if not detected there is less money available to government to spend on those deserving of the taxpayers help. Such fraud is difficult to detect and prosecute and takes up a lot of resources to investigate. For these reasons the sentence imposed must properly reflect application of the principle of general deterrence so that those who would seek to offend as you have are deterred from doing so.
8 In your case the sentence must also properly reflect specific deterrence because you have offended in this way before. For these reasons the prosecution seeks a sentence that involves your immediate gaoling. I understand that submission which is reinforced by a number of cases where sentencing courts have gaoled offenders in similar circumstances.
9 The possibility that you had committed this fraud was detected in February 2013. Your Newstart allowance was cancelled in October 2013. What are called entitlement reviews were conducted in November 2014 and you were not interviewed in a formal record of interview until 3 March 2016. You were not charged on summons until 2 June 2017.
10 You pleaded guilty to the charge at committal mention on 10 November 2017 and the plea came on for hearing before me on 16 October 2018.
11 I accept there has been lengthy delay in having this matter disposed of which cannot be explained and you have had this matter hanging over your head for an inordinate length of time not of your making (approaching 5 years) which has prevented you from getting on with your life. In passing sentence I have taken this delay into account as I must.
12 Had it not been for that fact, and the facts that you pleaded guilty at the earliest opportunity, and you have repaid all of the money that you fraudulently obtained from the Commonwealth, I would have sent you to gaol. That is especially so because of your prior conviction for the same offence. In all of the circumstances I have decided not to take that course.
13 In sentencing you for a Commonwealth offence I must have regard to the matters contained in part 1B of the Crimes Act 1914 (Cth), and particularly the non-exhaustive matters set out in s.16A sub-s.2 of that Act. In passing sentence upon you I have had full regard to these matters.
14 Importantly for you and to your credit you have pleaded guilty to the charge and you indicated that you would do so at the first available opportunity. By your plea of guilty you have accepted responsibility for your offending and I take your plea of guilty as evidence of your genuine remorse for your offending. You have saved the time and cost of a trial.
15 Mr Matthews filed a detailed outline of submissions which I marked as Exhibit 1 on the plea.
16 You are aged 67. I was told and accept you had a difficult upbringing with a controlling and abusive father. You have a brother but have had no contact with him for some years. Your mother is deceased and your father resides in a nursing home in Western Australia. You completed secondary schooling in Bentleigh and trained as a secretary and you worked in this area in various positions until 1992. From 1994 to 2002 you worked for Rotary but you were dismissed which had an effect upon you which meant that you were forced to apply for Newstart benefits from 2002.
17 You are single and it seems you lead a sheltered, frugal but simple life. Much of your life revolves around the Catholic Church and your participation in “The Little Company of Mary”. You have few supports within the community. You do not own a car or mobile phone. You have paid back the debt to the Commonwealth from superannuation savings and this has left you in a precarious financial position. You have around $9,000 in savings.
18 I received into evidence some character references on your behalf each of which speaks highly of you as a person.
19 I also received into evidence a psychological report from Pamela Matthews who also gave evidence on your behalf. She opined that at the interview you had an oddness about you. Cognitive testing revealed you suffer from mild neurocognitive disorder as defined by DSM-5. You also could suffer from autism spectrum disorder. Ms Matthews had difficulty differentiating these diagnoses from each other but she pointed out that what they each have in common are difficulties in interpersonal interrelatedness with others. It is this aspect of your presentation that Ms Matthews thought underlies your faulty functioning and rationale for your offence behaviour. Ms Matthews also opined that you suffer from mild/moderate reactive depression, and an adjustment disorder. I accept Ms Matthews' evidence that you suffer from significant cognitive decline.
20 Mr Matthews, who appeared as counsel on your behalf, submitted that I should impose a non-custodial sentence. He emphasised amongst other things:
· The simplicity of your offending and the fact that it was inevitable that you would be caught out. You did not seek to hide it or disguise it in any way, such as the use of false names;
· You do not appear to have been motivated by greed or the want for a high life but have been leading a very frugal existence;
· Your age and your mild neurocognitive disorder which is typically the early stages of dementia or Alzheimer's disease;
· You appear to have been living a socially isolated existence as revealed by aspects of what you said in your record of interview;
· Your plea of guilty at the earliest opportunity;
· The fact you have repaid the money you defrauded from the Commonwealth;
· Your remorse as reflected in your plea and what you said when interviewed;
· The inordinate delay in bringing this matter to court, not of your making;
· Your years of voluntary work in the community as revealed in your character references;
· Your reasonable prospects for rehabilitation which I accept.
21 I accept the submissions made on your behalf. In my overall assessment of you, you are not suitable for the making of a custodial sentence. You would find prison more burdensome than most other prisoners. I accept in your circumstances a merciful sentence is warranted. I am also mindful of the fact that a custodial sentence is a sentence of last resort.
22 On the charge of obtaining a financial advantage from the Commonwealth you are convicted and sentenced to a term of imprisonment of two and a half years.
23 I direct that you be released forthwith on a recognisance release order to be of good behaviour for a period of two and a half years in the sum of $5,000.
24 For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your plea of guilty to the charge I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.
25 Now Ms Kingman, the effect of the sentences that I have just announced is that I have passed a sentence of imprisonment of two and a half years but I have also directed that you be released on a recognisance release order to be of good behaviour for a period of two and a half years in the sum of $5,000. If you are of good behaviour for the period of two and a half years and importantly do not commit any further offences punishable by a term of imprisonment then that will be the end of the matter. You won’t have to pay the sum of $5,000. If you commit an offence you could be brought back before me and re-sentenced. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Are there any questions arising out of that?
MR MATTHEWS: No, Your Honour.
MR CHALLEN: Your Honour, my – no, Your Honour. My instructor and I will prepare the form.
HIS HONOUR: Thank you. Just come out of the dock if you would please, Ms Kingman and take a seat behind Mr Matthews.
MR CHALLEN: Your Honour, the form's been prepared.
HIS HONOUR: Thank you.
MR CHALLEN: Your Honour, the accused signs the second page and your associate witness's the signature.
HIS HONOUR: Yes. Yes, very well. I don't want to see you back here again, Ms Kingman, do you understand?
OFFENDER: Yes, Your Honour. Thank you very much.
HIS HONOUR: Could I thank both counsel for your assistance with this matter. You're free to leave. Feel free to leave the Bar table. I've got another matter.
MR CHALLEN: As Your Honour pleases.
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