CDirector of Public Prosecutions v Owen

[2024] VCC 1146

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-02068

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

JESSE OWEN

---

JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2024
DATE OF SENTENCE:	31 July 2024
CASE MAY BE CITED AS:	CDPP v Owen
MEDIUM NEUTRAL CITATION:	[2024] VCC 1146

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Dishonestly obtain financial advantage by deception from a Commonwealth entity, Attempt dishonestly obtain financial advantage by deception from a Commonwealth entity, GST fraud

Legislation Cited:      Crimes Act 1914 (Cth)

Cases Cited:

Sentence:                  12 months’ imprisonment with immediate release on a recognisance order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms J. Mackay	Commonwealth Director of Public Prosecutions
For the Offender	Mr M. Weinman	Burn City Legal

HER HONOUR:

1Jesse Owen, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception and one charge of attempting to dishonestly obtain a financial advantage by deception.  You have also agreed that a further charge of dishonestly obtaining a financial advantage by deception be taken into account when sentencing on Charge 1.

Circumstances of offending

2Both of the charges to which you have pleaded guilty relate to you fraudulently claiming money to which you were not entitled from the government.  Charge 1 is a rolled-up charge covering two business activity statements which were filed on your behalf and in respect of which you were paid $78,099, which you were not entitled to.  Charge 2 relates to an attempt by filing one other BAS statement and a revision of an earlier business activity statement, claiming a total $48,070.  I am also taking into account when sentencing for Charge 1 that you lodged a false claim for an Australian Government Disaster Recovery Payment which resulted in you receiving a payment of $1,000.

3All of the charges are put on the basis that between 20 April and 24 June in 2022 you agreed with a person, who you have not identified, to engage in acts which would defraud the revenue.  You and this unknown person divided up the money which was received with him getting approximately $20,000 of the $79,099 obtained. This person lodged the business activity statements on your behalf which contained the false information. You maintain, and the prosecution do not dispute, that it was this unknown person who carried out the bulk of the activity, with your assistance and consent.

Background

4On 5 April 2022, you and this person registered an ABN in your name. The main business activity was stated to be:  'Car or vehicle detailing or grooming service.' At this time you registered your ABN for monthly GST reporting.

5On 11 April 2022, you called the ATO and asked whether a monthly activity statement could be generated for your accountant because no statement was appearing on your accountant’s portal. You were told that the business activity statement would not be available until the end of the month.

6On 20 April 2022, you and the other person added your Commonwealth Bank details to your ATO Integrated Client Account in order to receive GST refunds.

7During this period you were unemployed. There was no business or enterprise in respect of which you could legitimately claim GST refunds.

Charge 1

8On 20 April 2022 and 22 May 2022, your unknown associate completed and lodged two business activity statements containing false information on your behalf. You had given this person access you your MyGov account for this to happen.

9Taken together, these two statements reported a total business sale of $109,343. $6,443 in GST was claimed to have been collected from those sales. The business activity statement statements together also reported a total of $929,962 in business acquisitions, and thus claimed that $85,542 was paid as GST in respect to those acquisitions. You therefore claimed a total of $78,099 in GST credits.

10On 28 April 2022 and 27 May 2022, the ATO processed your GST refund claims. The ATO made two payments into your Commonwealth bank account, the first was for $49,999 and the second for $28,000. You received, therefore, a financial advantage of $78,099, to which you were not entitled.

11You spent this entire amount within three weeks of receiving the second payment.

Charge 2

12Charge 2 is the charge of attempt.  On 15 June 2022 and 24 June 2022, the unknown co-offender completed and lodged two business activity statements containing false information on your behalf. You had again provided access to your MyGov account for him to do this.

13The statement lodged on 24 June 2022 was a revision of the business activity statement which had been successfully lodged in May 2022. The revision sought to increase the refund by an additional $19,000. Together, these two business activity statements claimed a GST refund in the amount of $48,070.

14An ATO audit had determined that you were not conducting a business that qualified you to register for GST, nor claim GST refunds.

15The ATO sent you letters on 22 June and 6 July 2022, notifying you of the audit results, and that your ABN and GST registration had been cancelled. You did not respond to either letter.

Scheduled Offence

16On 19 July 2022, using your Services Australia account, you lodged a claim for an Australian Government Disaster Relief Payment (AGDRP). You falsely claimed, first, that you had been living in Penrith in New South Wales since 28 June 2022; second, that you were affected by flooding in New South Wales on 2 July 2022; and thirdly, that flooding caused damage to your property, including a motor vehicle, trailer and caravan, with a total combined value of $41,000.

17Services Australia processed the claim on the day it was lodged and paid you $1,000 into your CBA bank account.  Thus, you received a financial advantage of $1,000 to which you were not entitled. You spent that money also within days of receipt, including spending $700 on tyres, amongst other expenses.

18You were interviewed by the police on 13 April 2023.  You said that in February 2022 you met the unnamed person who told you he had a way to make money.  You gave him your details and he set up everything on your phone.  You say that at the time you thought of this as a way to make money and that the notion of tax fraud simply did not enter your head.  You said you woke up one day to find the money in your account.  The unnamed person took his cut and then a month or so later you tried the method again. You did not remember the claims that are the subject of Charge 2 and you had no recollection of the Disaster Relief Program plan.

19You said that you went to the Gold Coast and spent the money partying and taking drugs. 

Personal Circumstances

20You are now 22 years old and you were between 20 and 21 at the time of the offending.

21You were raised by your parents in Belgrave Heights. You have described your childhood as average, reporting that you grew up in a healthy and safe environment.[1] You do not appear to have suffered any abuse or trauma in your formative years. You do report that you were bullied about your weight when you were in primary school, and you lashed out to defend yourself which earned you the tag of you, yourself, being violent.

[1] Mackinnon report 11

22When you were 17 and 18 you lost two friends and your dog had to be put down.  It was after this that you began to turn to illicit drugs. You state that you have bumped heads with your parents in recent years but nothing is reported that seems inconsistent with a young person and his parents learning new boundaries of their relationship.[2]

[2] Mackinnon report 12-13

23You have one younger sister and two older half-sisters. You grew up with your younger sister and you get on well with her, although you have had limited contact with your older half-sisters.[3]

[3] Mackinnon report 10, 14

24You attended Tecoma Primary School and then Upwey Secondary College until Year 9. You completed Year 10 at Ranges TEC Lilydale.

25You began a plumbing apprenticeship after you left school but you were retrenched after three years due to the Covid pandemic.

26You worked for National Windscreens for seven months and you now work at Triple Eight Plumbing where you have worked for the last two years. Your employer states that you are a reliable worker and an integral part of the team.

27Several character references were submitting on your behalf from you parents, a friend, a friend of the family and your employer. You have been candid with them about the charges against you and you continue to have their support.

28During school your interests included playing football and cricket and after leaving school your primary recreations included fishing, camping and dirt bike riding. You also go to the gym regularly, and it is important for your work that you are fit and strong.

Mental Health

29You do have a history of issues regarding your mental health. You appear to have struggled with low self-esteem, depression and anxiety as a child and into your adolescence.

30In May 2021, you and your girlfriend had broken up recently. One night you went to a party and got back to your parents' home at around 3.00 am.  You were intoxicated, having taken a lot of drugs. You left the house, which your parents were not aware of, although your younger sister alerted them to the situation.

31Somebody unknown called emergency services. You were given liquid ketamine and admitted to a psychiatric ward overnight where you had to be restrained. You went back to live with your parents the following day. Your mum took a week of leave from work and reduced her hours to look after you.  As I understand it, this is the only instance of hospitalisation you had had in respect to your mental health or drug use.  From the description I have been given, it appears that this was a drug-related incident, although your distress about the break-up of your relationship was probably a contributor to your over-use of drugs on that occasion.

32I was provided with a report by Mr Mackinnon, a psychologist, for the purposes of the plea.  He considers that at the time of his assessment, which was in November last year, you suffered from mixed depressive and anxiety disorder (MDAD).

33Mr Mackinnon thought that you were particularly vulnerable to heightened depression and anxiety as a response to perceived criticism, rejection, or abandonment from others.  This relates, in particular, to former partners and also your family relationships.  Mr Mackinnon considered that when you were emotionally distressed and frustrated, this could result in anger or a poorly developed emotional reaction to the situation.

34Mr Mackinnon considered that you appeared to have self-medicated from the ages of 18 to 20 with cocaine, to address your mental distress.

35More recently, you have been taking positive steps to address your mental health. You have attended many sessions with a registered psychologist, Mr Mark Jacka, since March this year.

36Mr Mackinnon thought that your mental health had improved since the offending due to your more stable life and that you were enthusiastic about your work.[4]

[4] Mackinnon report 83

Substance Use

37Mr Mackinnon considered that you previously suffered from a substance abuse disorder, revolving around the use of cocaine. You reported to him that around the time of the offending you were using large quantities of that drug.  Most of the money which you gained through this offending was spent feeding your addiction.

38Mr Mackinnon considered by the time he assessed you, you had overcome your substance abuse disorder.[5] You told him that you had not used cocaine in over a year.

[5] Mackinnon report 62

39During the course of these proceedings, you provided the court with two voluntary urine screens in June 2024.[6] Neither test detected the absence of any illicit substance.  Both showed the presence of creatine, a legal health supplement that your counsel explained you use when going to the gym.

[6] Date samples collected, each reported 3 days later

Plea of Guilty and Co-operation with Authorities

40One factor to take into account in considering sentence is your plea of guilty and your co-operation with the authorities.  When you were interviewed by the police you were forthcoming with them, although you did not, or could not, provide any usable information about the person who did all the legwork for the offending.  You did provide your bank statements to the police.

41You were charged on summons in June 2023.  You did not run a contested committal and the matter was committed to this court on 5 December 2023.

42In May this year, I began to hear your application for a sentence indication.  That hearing was adjourned until 12 July so that further information could be provided to me.  At that hearing on 12 July I indicated that I would impose a period of imprisonment but with immediate release on a recognisance release order.  You accepted that indication and the matter was booked in for further plea and sentence today, 31 July 2024.

43You are entitled to a reduction in your sentence due to having pleaded guilty.  In so doing you have saved the need for a trial, which is an expense to the community both in terms of money, time and resources. 

Contrition and Reparation

44I also have regard to your plea of guilty and your agreement to the reparation order as an indication of your regret and contrition for the offending.   

Prospects of Rehabilitation and Specific Deterrence

45Regarding your prospects of rehabilitation and the need for specific deterrence, you have a limited criminal history having received a bond in 2022 for driving- related offences and a fine in September of that year for contravening a family violence intervention order. 

46A significant factor in sentencing you is that you are still only 22 years old.  Although you do not come before me as a person of otherwise good character, your prior matters are minimal and they are not of the same character as the offences for which I am sentencing you.  Because of your age your rehabilitation is a significant factor in mitigation of your sentence.

47You offended due to your drug addiction and your consequent need for money.  You appear to have been willing to engage with the other person, accepting his offer for easy money.  Your thoughtless and selfish attitude is consistent with your age at the time and your addiction. 

48Your life has improved since then.  You have managed to control your drug addiction.  You have sought mental health treatment without a court order.  You have a job and you have the continued support of your parents.

49Because of your efforts to address the underlying issues that led to your offending, I accept that your prospects of rehabilitation are at least reasonable.  That said, deterring you from committing further offences still carries some weight in the sentencing exercise.  I consider that the recognisance release order, which requires you to be of good behaviour for the period of the sentence, will act as a sufficient deterrent upon you.

50Furthermore, given your efforts and that you are currently employed, I consider that a period of actual imprisonment would derail you from your current pro-social path.

Punishment and General Deterrence

51I am also required to take into account punishment and general deterrence.  Defrauding the revenue in this manner, and in other ways, is a crime which is regularly before the courts.  It needs to be clear to people in the community that such offending is not a victimless crime.  The ultimate victim is the community which suffers from the lack of available funds. 

52Thus, general deterrence is a very significant factor when sentencing for this type of offending.  I accept that the deterrent effect of a term of imprisonment is less when immediate release on a recognisance release order is made, but a sentence of imprisonment, even under such an order, does act as a punishment and the sentence expresses the community’s condemnation of such offending.

Scheduled Offence

53You have agreed that I should take into account when sentencing on Charge 1  the scheduled offence.[7]  Whilst the quantum of that offending was relatively low, only $1,000, I consider such offending is disgraceful.  Taking advantage of the support that the government offers to those in real need, due to a disaster, is selfishness of a high level.  The dishonesty of people such as you can make it harder for legitimate claimants to access such money.

[7]Crimes Act 1914 s16BA

54When sentencing on Charge 1, I will give greater weight to specific deterrence and punishment so that the sentence on Charge 1 will be slightly longer than if I had not taken the scheduled offence into account.

Sentence

55The sentences are as follows:

56On Charge 1, you are sentenced to 10 months' imprisonment, and on Charge 2 you are sentenced to four months’ imprisonment.  The sentence on Charge 2 commences immediately, that is today, and the sentence on Charge 1 commences two months from today. 

57Thus, the total effective sentence is 12 months' imprisonment. 

58As discussed, I will order your release immediately on a recognisance release order:

59The conditions of that order are that you enter a recognisance of $5,000 and that you be of good behaviour for the period of the sentence, that is 12 months.

60Pursuant to s6AAA, I state that if you had not pleaded guilty to the offences before me, I would have sentenced you to 18 months' imprisonment with nine months to serve.

61I will make the reparation order sought by the crown.

- - -