CDirector of Public Prosecutions v Pham

[2021] VCC 1776

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

AT MELBOURNE

CRIMINAL DIVISION

CR 21-00769

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

TRUNG PHAM

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JUDGE:	HIS HONOUR JUDGE HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	9 November 2021
CASE MAY BE CITED AS:	CDPP v Pham
MEDIUM NEUTRAL CITATION:	[2021] VCC 1776

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing.

Catchwords:              Plea of guilty – Dishonestly obtaining a financial advantage by deception from a Commonwealth entity – no prior criminal history – general deterrence is the paramount sentencing consideration – Hard worker – delay – remorse – failure to report income – favourable prospects of rehabilitation – covid-19 circumstances taken into account.

Legislation Cited:      Criminal Code Act 1995 (Cth) section 134.2(1); Crimes Act 1994 (Vic) section 16A(2) (f)-(i) and section 21B(1).

Cases Cited:R v Miceli [1998] 4 VR 588; R v Newton [2010] 199 A Crim R 288; Police v Hatty [2007] SASC 180; Worboyes v The Queen [2021] VSCA 169; Rossi , Rosa Catherine v The Queen [2021] VSCA 296.

Sentence:                  Sentenced to a term of imprisonment for a period of 12 months with two months required to be served before being released on a recognisance order in the amount of $1,200.00 with the condition to be of good behaviour for a period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms S. Isaacs	Department of Public prosecutions
For the Accused	Mr J. Portelli	James Dowsley & Associates

HIS HONOUR:

Introduction

1Trung Truc Pham, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to section 134.2(1) of the Criminal Code Act 1995 (Cth).

2The maximum penalty for this offence is 10 years' imprisonment and/or a pecuniary penalty of $66,000.

Circumstances of the offending

3The circumstances of your offending are detailed in the prosecution opening which was exhibited on the plea.[1]  I act upon the facts as outlined in the opening  which were not disputed by you.  I will briefly summarise those circumstances and the prosecution opening should be read in conjunction with these remarks.

[1] The prosecution opening (and chronology) is Exhibit 1 on the plea.

4You were assessed as eligible to receive a disability support pension in April 1999.  The prosecution has informed me this was based on you being assessed as having a permanent medical condition, being a musculoskeletal disorder called poliomyelitis.

5You received the disability support pension, for approximately 10 years when you then obtained employment through Australia Wide Personnel as a blender/bulker in food production on 8 December 2010.

6On 21 December 2010, you reported to the Department of Social Services (the Department) that you had obtained casual employment and the income you were receiving, which was low enough that you continued to receive a part-pension.  Then in August 2011 you reported to the Department that you had commenced working for more than 30 hours per week, and this resulted in you being ineligible for further receipt of the disability support pension.

7On 24 October 2012 you falsely reported to the Department that you had ceased working on 16 October 2012.  The result was your disability support pension was restored and you started to receive fortnightly payments to which you were not entitled.

8These payments continued  between 24 October 2012 and 11 August 2017, a time period of approximately four years and 10 months.

9I was informed during the plea hearing that you received the disability support pension for approximately 124 fortnights, and that for 28 of those fortnights your income from your employment  was low enough  that you would have been  entitled to a part payment of the disability support pension.

10During the offending period, you received an amount of $104,752.67 in disability support pension payments, but you were only lawfully entitled to $17,121.31 of those payments.  Therefore the amount that you fraudulently obtained from the Commonwealth is $87,631.36.

11As a result of your false report that you had ceased employment you were not required to regularly complete forms declaring your income in order to continue receiving your fortnightly payments.  However, it is not in dispute that throughout the period of offending, you were aware of the general and continuing obligation to notify the Department of any income derived from employment.  You had in fact previously complied with that obligation of disclosure, between December 2010 and August 2011, the nine-month period immediately prior to your false report of having ceased employment.  The continuing obligation required you to notify the Department of any changes in your circumstances of employment or income within 14 days of the change occurring.

12During the offending period, you earned a total gross income of $206,918 (an average of $1,668.69, per fortnight) from your employment.  Your employment income was deposited into a bank account different from the bank account into which the Department paid you the disability support pension.  At no point during the offending period did you inform Centrelink of your ongoing employment through Australia Wide Personnel or the wages you were receiving from that employment.

13Your offending was detected by way of a data match conducted by the Department with the Australian Taxation Office on 28 April 2017.  You were sent a letter by the Department on 21 June 2017, that informed you that the Department had become aware of your income from your employment.

14No doubt, partly as a result of that letter, you then reported on 17 July 2017 to the Department that you were currently employed.  As a result of this report, you were again required to declare your fortnightly income.  On 9 August 2017, you reported that you had worked more than 30 hours per week in the previous fortnight but did not report your income.  Because you did not report your income, you received a further disability support pension payment to which you were not entitled and your final payment was received on 11 August 2017.

15The Department then wrote to you on 8 March 2018 and 3 April 2018 advising you that you had a debt owing to the Commonwealth.  The Department also wrote to you on 8 March 2018 inviting you to participate in a formal record of interview.  Sorry, that date should be 28 February. 

16The Department also wrote to you on 8 March 2018 inviting you to participate in a formal record of interview; however, you did not respond to that letter and no formal interview took place.

17You were subsequently charged with the offence before the court and pleaded guilty at the committal mention stage.  I will refer in more detail to the chronology relating to your prosecution later in these reasons.

Personal Circumstances

18In sentencing you, I have taken into account your personal circumstances that are outlined in counsel's written submissions and in a psychological report completed by Ms Laura Fleming dated 19 October 2021.[2]

[2] Exhibit A and B respectively.

19You are now 62 years of age.  You were born in Ho Chi Minh City, Vietnam in 1959.  Your father was a military officer for the South Vietnamese Government, who were overthrown by  the North Vietnamese and Viet Cong forces in 1975.  You have three younger siblings.

20You have strong memories of fierce fighting in the area where you and your family lived and remember hearing gunshots from your home when you were approximately 15-years-old.  Your father was arrested for his role in the military and this was an extremely stressful time for your family.  There was constant fear for the safety of your mother and sisters and multiple attempts were made by the incoming forces to seize your family home.  You became the oldest male in the household at the age of 16.

21You had been attending a local Catholic school at the time, but after the regime change in 1975 you were not permitted to undertake further study.  After your father was imprisoned in Vietnam, your mother had to resort to sewing clothing to derive an income for basic necessities. It was a traumatic time for you and your family.

22Ultimately you fled from Vietnam to Malaysia with your younger sister.  You made your way to Australia as part of a UN humanitarian program in 1983 when you were approximately 24 years old.  You arrived in Sydney and then within six months settled in Melbourne and subsequently managed to obtain a series of factory jobs.

23You married in Australia in 1990 when you were aged 31 and working for a clothing manufacturer.  Ms Fleming noted in her report that while you were married to your first wife you purchased and operated a bakery, but it was not a successful venture and you were left with substantial debt as a result of loans obtained to support the business.  Your first marriage lasted for a little over 10 years.  You separated from your first wife in 2003 and later divorced.  You have two children from your first marriage, a daughter named Serina, who is now 21 years old and works as a manager in a fast food outlet, and Chris, who is 30 years old and works as a truck driver.  You remarried in 2005, but after about four or five years this marriage also ended.

24I was informed by your counsel that, despite your divorce from their mother, your two children remain close to you and are supportive of you.  This was verified by a letter written by your daughter Serina that was tendered on your plea.[3]

[3] Exhibit D.

25Your daughter is currently studying criminology and psychology at Swinburne University.  She describes you as a loving father who has always provided her with necessities and things she wanted.  She says that you are constantly encouraging her to persist with her studies.  She provides some additional detail about your major physical impairment, writing that you grew up limping everywhere due to your right leg being shorter than your left leg and that you cannot walk great distances without assistance.

26You currently have the support of your younger sister and live with her in rented accommodation in Rowville.  I am told that you have a room in her house and that you contribute financially to the daily living expenses.

27Since 2010 you have been employed in a food production factory, Mansfield, which is based in Keysborough.  You are employed there as a process worker on a casual basis.

28Your counsel submitted that you have very limited English language skills and you cannot read and write more than basic English.

29He also submitted that you have a number of physical health conditions including asthma, type 2 diabetes, high blood pressure and partial paralysis of your right leg.[4]

[4] Exhibit C was prescriptions for medications you required to treat some of these conditions.

30Ms Fleming reported on the impact of your physical disability since childhood in her psychological report.  You told her that since you were two years of age you have had a leg malformation due to contracting an infection and have since had difficulty mobilising due to one leg being shorter than the other.

31Ms Fleming also reported that you do not appear to have any mental health concerns that would meet diagnostic thresholds at the time of offending or currently.

Delay and the absence of prior or subsequent offending. 

32This offence was your only transgression against the law, you have no prior convictions and there have been no subsequent charges.

33You ceased dishonestly receiving the disability support pension on 11 August 2017 and it is now over four years since your offending.  Although not referred to in the written submissions tendered by your counsel, it was submitted during your plea hearing that there was an unfortunate period of delay in you being charged and brought before the court.  Counsel submitted that during this period you were in a state of uncertainty as to whether there would be further legal consequences in respect of your offending. 

34The chronology of the investigation and prosecution is as follows:

(a)   The offending was detected by data matching in April 2017;

(b)   You were sent a letter advising you of the allegations dated 21 June 2017;

(c)   You were also sent a letter inviting you to attend an interview regarding the allegations on 8 March 2018; however, you did not respond to this invitation and were not interviewed;

(d)   A charge and summons was issued on 30 July 2018;

(e)   You were not served with the summons for approximately 20 months.  The prosecutor explained during the plea that this was because the authorities were unable to establish your residential address in this period;

(f)    A summons and charge was reissued on 31 March 2020 and served upon you with the summons being returnable at the Magistrates' Court on 1 May 2020;

(g)   On 1 May 2020, despite having been served, you did not attend court and a warrant was issued for your arrest;

(h)   You were subsequently arrested and bailed.  You attended the new filing hearing date in the Magistrates' Court on 25 November 2020;

(i)    You pleaded guilty at a committal mention in the Magistrates' Court on 16 April 2021 and the matter was brought before me for a plea hearing in the  County Court on 28 October 2021.

35It is apparent, that some of the delay in having this matter finalised was due to you not answering your summons and attending court on 1 May 2020.  That appears to have caused a delay of a little over six months from 1 May 2020 to 25 November 2020.

36I was informed during the plea hearing that the you entered an arrangement to repay the debt arising from your offending on 8 March 2018 and you maintained that arrangement and continued to be employed with the same company that you had worked for since 2010.  The Department had as part of the investigation obtained your employment records and knew where you worked.  It is not alleged that when your pension was cancelled you were under any legal obligation to advise the department of your change of address.  I was told by the prosecutor  during the plea hearing that the authorities attended at your previous address in an effort to serve the summons and then left two phone messages for you in March 2019 requesting that you contact the Department.  A letter was also sent to your previous address requesting you contact the Department on 27 June 2019.  It appears that both the letter and the phone messages were in English, despite you having indicated on your original application for benefits that your preferred language of communication is Vietnamese.  Apparently no attempt was ever made between the date the first charge and summons was issued, on 30 July 2018, and the date the charge was reissued, on 31 March 2020, to serve the summons by attending at your place of employment.  I was informed that it was thought by the authorities that service at your work address was regarded as inappropriate as it might possibly impact upon your employment.

37The prosecutor conceded during the plea hearing that the delay in this case was a relevant matter for me to take into account but that the delay was not a matter that should significantly ameliorate the sentence imposed.

38I do not accept the prosecution submission that the delay in this case is not a matter of some significance.  I note that in the case of R v Miceli [1998] 4 VR 588 the court regarded it as an error for the sentencing judge not to have regard to a delay of 12 months between a confessional interview and the consequent issuing of summons. His Honour Tadgell JA (with whom the other members of the court agreed) stated, 'There is, in my opinion, no requirement that the delay should be inordinate before it deserves to be taken into account in accordance with the principles adopted in the cases I have mentioned'. Those principles laid out the reasons why undue delay in the disposition of a charge should work in favour of a prisoner being sentenced.

39The circumstances of this case are somewhat different in that the first charge and summons was issued approximately four months from the time you entered an arrangement to commence repayment of the debt.  However, the reality is, that your plea hearing is being conducted some four years and four months since the Department wrote to you in June 2017 advising you of the employment income information that had been received from the Australian Taxation Office.  Your own conduct appears responsible for a little over six months of that period of delay, but it is of some significance that you are not responsible for the remainder of the delay and you have in the interim period rearranged your affairs in that time, moving into stable accommodation with your sister and not committing any further offences.

40I do regard the efforts to locate you and serve you with the initial summons as being fairly perfunctory and accept that you must have been concerned as to whether you would be charged during that period.  I regard the delay in this matter being finalised as a significant matter in mitigation and I take into account that this period of offending is your only contravention of the law.  I regard your prospects of rehabilitation as favourable.

41The prosecution submits that your offending can only be properly dealt with by way of a period of imprisonment, part of which must be served immediately.  The prosecution has placed before me a number of cases that are said to be 'comparable' and pointed to the fact that in cases of social security fraud a significant, if not pre-eminent, sentencing consideration is general deterrence.  These cases have emphasised that the social security system largely relies upon the honesty of those in receipt of benefits.  The social security system is open to abuse and offences of this type are prevalent and sometimes difficult to detect.  

42The sentence imposed must deter others from engaging in similar conduct.  I have carefully considered these cases and I accept the prosecution submission that for cases of significant social security fraud general deterrence is an important consideration and that such offending usually requires the imposition of a period of imprisonment actually served.  That of course is not to deny the fact that I have a wide discretion as to the appropriate sentence and each case must be determined according to its own individual circumstances.

Gravity of the offending.

43The prosecution concede that the circumstances of the offending were 'relatively unsophisticated'.  It is not alleged that you used any false identities, which is often a feature in this type of offending.  Indeed you initially reported your employment and income to the relevant authority when you commenced work in October 2010.  You stayed in the same employment throughout the offending period.  It might be said that in due course the detection of your fraud was likely.  As was pointed out in the Queensland Court of Appeal in the case of R v Newton [2010] 199 A Crim R 288:

'It may be that one aspect of the need for general deterrence is now less important than it was formerly in the case of those who, like the applicant, offend by fraudulently concealing income earned in their own names.  The program of data matching between Centrelink and the Australian Tax Office is now more likely to detect those unlawfully claiming social security benefits while in paid employment'.[5]

[5] Para [8]

44I note this case was decided over 10 years ago and one might expect that the systems of data comparison may well have improved since that decision.  It was also the case that your offending did not involve the repeated lodgement of false applications and the letters that you received reminding you of your obligations appear to have been in the English language with which you are not conversant.

45Accepting that your offending may be regarded as at the lower level in relation to some aspects of how this type of offending may be committed it cannot be overlooked that you continued to knowingly receive benefits to which you were not entitled for a period of four years and 10 months.  In that time you received the significant sum of $87, 631 to which you were not entitled.

46The prosecution submitted that your offending was motivated by greed rather than need, whereas the defence submitted that you spent the money on normal daily living expenses.  I do not find that it is correct to characterise your offending as committed because of greed.[6]  The prosecution were not able to point to any evidence of extravagance in your lifestyle or the possession of luxurious items.  Your bank account statements in the depositional material never appeared to have large amounts of savings.  I accept the defence submission that you spent the illegally obtained funds paying day-to-day living expenses.  At the same time it was never submitted on your behalf that your offending and continued receipt of an illegitimate income, was motivated by desperate financial circumstance.

[6] At Para 27 of the prosecution submission on sentence reliance was placed  upon the authority of Police v Hatty [2007] SASC 180 to submit that, 'There is no proper distinction between offending motivated by a desire to live in "comfort" as against "greed"'. I considered that the facts of that case were distinguishable from this case and that Hatty did not support the submission that the offending in this case was motivated by greed.

Submissions

47Your counsel has put forward detailed submissions suggesting there are a number of mitigating factors that need to be considered in formulating an appropriate sentence.  Mr Portelli on your behalf concedes that the offending in this case is serious enough that a period of imprisonment is appropriate; however, he submits that a number of mitigatory factors in combination  justifies the imposition of a recognisance release order that would allow you to be released from the day your sentence is imposed.

48It is not in dispute that you entered an early plea at the committal mention of this case.  Your counsel submits the plea is consistent with remorse for the offending.  It was clarified during the plea hearing that you acknowledged your debt and entered a repayment plan with the Department in March 2018.  It is of some significance that you entered this arrangement before you were formally charged with this offence and you have, between March 2018 and your plea hearing before me, managed to repay the amount of $6,285.

49Section 16A(2) of the Crimes Act 1914 (Cth) sets out a non-exhaustive list of the matters to which the court must have regard when imposing sentence. I have taken those matters into account. Section 16A(2)(f)(i) specifically provides that I must take into account:

'The degree to which the person has shown contrition for the offence by taking action to make reparation for any injury or loss or damage resulting from the offence'.

50Although the total amount you have repaid is a long way short of the amount fraudulently obtained, I accept that you have done this whilst earning a modest wage and your conduct in making these repayments and entering your plea of guilty early is consistent with you being remorseful for the offending.

51Your counsel has noted that your  plea was entered during the COVID-19 pandemic.  It is the case that the pandemic has made it difficult to conduct jury trials in this court with the result that the backlog of trials has increased significantly.  In these circumstances your plea of guilty assists in relieving that backlog and the strain on the criminal justice system and warrants 'a palpable amelioration of sentence'.[7]  The prosecution concedes that I must take account of the added utilitarian benefit of your plea in these circumstances.

[7] Worboyes v The Queen [2021] VSCA 169.

52I note the Court of Appeal has recently commented:

'There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.  As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.  Thereafter, he or she will have very restricted opportunities for contact with family and friends.  Further, rehabilitative and other programs within prisons are severely curtailed.  That this is so is notorious.  These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea.  These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt'.[8]

[8] Rossi , Rosa Catherine v The Queen [2021] VSCA 296.

53It may be that things are improving gradually within the prison system as vaccination rates increase; however, there are still restrictions that make imprisonment generally more difficult than would otherwise be the case in the absence of a global pandemic.

54Counsel has also submitted that you are legitimately anxious about being in a prison  environment with the various health problems that you have and where you are unable to control the risk of possible exposure to the COVID-19 virus.  Should you contract the virus you are a person who may be more severely affected given your age and that you suffer from a chronic respiratory illness.

55The prosecution submits that your medical conditions do not prevent you from engaging in employment and do not incapacitate you to the extent that I should find that imprisonment will necessarily be more difficult  for you than for a person without these conditions.  I do accept that these medical conditions are of relevance and may cause you some legitimate concern regarding possible exposure to the virus whilst serving a period of custody.  However, I find, and your counsel concedes, that the evidence falls short of establishing that imprisonment would be significantly more difficult for you than a person without these conditions.

56Your counsel also submitted that your exposure to trauma in your 'formative years' in Vietnam has relevance to the sentencing task, emphasising the difficulties you and your family experienced in Vietnam after your father was arrested and the fairly desperate circumstances in which you managed to find your way to Australia.  Mr Portelli does acknowledge, however, that the report of Ms Fleming does not identify any particular psychological condition that is relevant to the application of sentencing principles.

57It is not asserted that there is any causal connection between your difficult background and the commission of this offending.  However, your background is relevant in the overall assessment of your character, the offending and your prospects of rehabilitation.  In particular, I take into account that you came to this country in very difficult circumstances and have, aside from this offending, appeared to have been a hard-working person who has provided as best you can for your family, as your daughter's letter confirms.

58I also note that, despite qualifying for receipt of a disability support pension and receiving that pension for 10 years, you eventually found yourself employment and initially reported that employment and your income in compliance with the law. 

59I am mindful that I must impose a sentence taking account of all of the relevant circumstances both personal to you and relating to the commission of your offending.  As I have already stated there are a number of significant factors in mitigation including your favourable prospects of rehabilitation, your plea of guilty at a time of the pandemic, early arrangements to repay the debt incurred, the delay in finalising the charge and your difficult personal background and health problems.

60This is, however, a serious offence where you purposefully defrauded the Commonwealth and continued to do so over a period of nearly five years.  I do find that in order to impose a sentence that is of a severity appropriate in all the circumstances of the offence it is necessary to impose a period of imprisonment, part of which must be immediately served.  The sentence imposed must deter others from engaging in similar conduct. However, taking account of the circumstances in mitigation and the overall circumstances of your offending, I have moderated both the overall period of imprisonment imposed and the period that you will be required to actually serve before release.

Sentence.

61Mr Pham, on the charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to subsection 134.2(1) of the Criminal Code you are convicted and sentenced to be imprisoned for a period of 12 months.  I order that you are required to serve a period of two months from today before being released upon a recognisance release order in the amount of $1,200 with the condition that you be of good behaviour for a period of 18 months.

62Pursuant to s6AAA of the Sentencing Act 1991 I indicate that had you not pleaded guilty to this offence I would have sentenced you to a period of 18 months' imprisonment with an order that you serve a period of seven months before release on a recognisance release order in the sum of $1,500 to be of good behaviour for two years.

63I order that pursuant to section 21B(1) of the Crimes Act 1914 that Trung Truc Pham make reparation to Services Australia, GPO Box 32, Melbourne Vic 3000, which is a Commonwealth agency, in the sum of $81,346.36 cents.

64I further order that it be recorded in the records of the court that correctional authorities be provided with a copy of Exhibit C, being prescription medication required by the prisoner in order to treat his medical conditions of asthma, type 2 diabetes and high blood pressure, and that it be noted that it is the prisoner's first period of imprisonment and he should be medically reviewed as soon as possible.  

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