CDirector of Public Prosecutions v Queale (a pseudonym)
[2021] VCC 73
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| EVA QUEALE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2020 | |
DATE OF SENTENCE: | 5 February 2021 | |
CASE MAY BE CITED AS: | CDPP v QUEALE (A PSEUDONYM) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 73 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dishonestly obtain a financial advantage by deception from a Commonwealth entity – age pension payments – false representation to Department of Human Services of income amount – received $107,255.32 to which not entitled – admitted criminal history – gambling disorder – major depressive disorder and unresolved post-traumatic stress disorder – offending to fund gambling - COVID-19 risk – some repayment – early plea of guilty – low risk of reoffending – advanced age - mercy.
Legislation Cited: s134.2(1) Criminal Code (Cth) , s17 Crimes Act 1914 (Cth)
Cases Cited:R v Madex [2020] VSC 145; R v Verdins (2007) 16 VR 269; Markovic v R (2010) 30 VR 589; DPP v Snow (a pseudonym) [2020] VSCA 67; R v Iles [2009] VSCA 197; Gulyas v State of Western Australia [2007] WASCA 263; Hili v R (2010) 242 CLR 520.
Sentence: Two years imprisonment released forthwith upon giving security by recognisance in the sum of $500 with three year good behaviour condition. Order for reparation.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms H. Loh | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Mr J. Manning | Victoria Legal Aid |
HIS HONOUR:
1Eva Queale[1], also known as Eva Queale-North[2], you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s134.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is 10 years’ imprisonment.
[1] Eva Queale is a pseudonym.
[2] Eva Queale-North is a pseudonym.
Circumstances of offending
2The circumstances of your offending are set out in the prosecution opening for plea marked Exhibit P1. I will summarise the plea opening, which was not disputed by your counsel, Mr Manning.
3Between 28 November 2012 and 30 August 2018, in the name Eva Queale‑North, you obtained $107,255.30 of age pension payments to which you were not entitled as a result of having falsely represented to the Department of Human Services (“the Department”) the amount of your income from your employment. Your repeated provision of incorrect information to the Department amounted to an ongoing course of conduct.
4You have been in receipt of social security benefits since 1990. You commenced with the disability support pension and later you were transferred to the age pension when you turned 63 years of age. The rate of benefit payable is affected by other income received, including income from employment.
5During the period of your offending you received age pension payments which were deposited by the Department into a Bendigo Bank Limited account held in the name of Eva Queale-North.
6During that period, you also received income from two employers.
First, between at least 28 November 2012 and at least 30 August 2018 you were employed by the Kew Club[3] on a part-time basis as a bus driver and earned $131,739.19 gross income over that period.
Secondly, between at least 28 November 2012 and at least 30 August 2018 you were employed by the Kew Bus Company[4] on a casual basis as a bus driver and earned $173,922.27 gross income over that period.
[3] Kew Club is a pseudonym.
[4] Kew Bus Company is a pseudonym.
7Thus, your combined total gross income over the period of your offending was $305,661.46 which averaged out at a little over $2,000 per fortnight. Your wages from the Kew Club were paid into an ANZ Bank account. Your wages from Kew Bus Company were paid into a Commonwealth Bank account. Both of these accounts were held in the name of “Eva Queale” and are different to the account into which your age pension payments were deposited.
8The requirement that you report your income to the Department varied over time. Before 10 January 2013, you were not required to report your income on a regular basis in order to be paid the age pension. However, on 28 November 2012, in the course of a review of your entitlement to age pension conducted by the Department, you reported having commenced work and receiving income but under-declared your income and advised the Department only of your employment with Kew Bus Company. At that review, you were informed of the importance of declaring your gross income.
9Commencing 10 January 2013, you were required to report your income to the Department on a fortnightly basis. You did so until the cessation of that requirement as a result of your having declared very little to no income in the preceding six fortnights. You reported on 30 occasions with the last being on 5 March 2014. Although you were no longer subject to a reporting regime, you were reminded in a letter from the Department dated 5 March 2014 that you remained under an ongoing obligation to report an event or change in circumstances, such as changes to your income, including if you commenced earning income or if your income varied.
10Commencing 16 August 2018, as a result of another review of your entitlement to the age pension, you were again placed on a fortnightly reporting regime. In respect of the fortnight commencing 16 August 2018, which is the last one the subject of the charge, you reported on 29 August 2018 and received your corresponding age pension payment on 30 August 2018.
11You reported your income on a combined total of 31 occasions. Of those 31 reports, nine were “nil” declarations and 22 were “under-declarations” of income. As a result of these false reports to the Department, you obtained social security payments to which you knew or believed you were not entitled or only partially entitled.
12You declared only $13,046.95 of the $305,661.45 you earned, meaning that you under declared a total of $292,614.51. As a result, you received $107,255.30 in benefits to which you were not entitled. Your offending was detected by way of data matching with the Australian Taxation Office on 28 April 2017.
13You were invited by the Department to participate in a formal interview which you did on 22 November 2018. Among the things you told the investigators, you said that:
· You stopped reporting because you were going through a family crisis;
· You continued working to deal with the trauma not only of your own sexual abuse at the hands of your father but also the later discovery that he had also sexually abused your three daughters and two nieces, with subsequent legal proceedings splitting the family;
· You used your wages on gambling which you had started due to stress. You also used your wages on living expenses and work on your house;
· During the review of your entitlement in 2012, you did not disclose your employment with the Kew Club because you did not consider it to be work;
· You denied any “devious” reason for using the three different bank accounts but did not explain why you did so; and
· You initially said that you did not even think about what would happen to your age pension if you declared your income, but later in the interview you acknowledged that during the period when you reported, you did notice that reporting of your income reduced the amount of payment you received into your bank account from the Department.
Personal circumstances
14You are now 77 years of age. You will be 78 in June of this year.
15You are the oldest of three children. Your mother died in 2000 and your father in 2005. You have limited contact with your younger sister and younger brother.
16You were married and have four children from that marriage. After some 14 years of marriage you separated from your husband whom you report was physically and psychologically abusive. The marriage ended when he left you for your best friend.
17You grew up in Barwon[5] and later Geelong[6]. You completed the equivalent of Year 10. On leaving school you have held a number of jobs in addition to raising your four children. From 1985 until the present you worked with Kew Bus Company on a part time, casual basis. You also worked at the Kew Club, driving a courtesy bus three nights a week.
[5] Barwon is a pseudonym.
[6] Geelong is a pseudonym.
18In about 1987 you entered a relationship with another man who died in 1993. Following his death, you commenced gambling which, according to you, became problematic in about 2000. That coincided with your daughters’ and nieces’ disclosure to you that they had been sexually abused by your father. Their abuse was reported to police, your father was charged, and following a trial was found guilty and sentenced to 8 years’ imprisonment. You gave evidence against him at his trial. Your evidence included the details of the sexual abuse you suffered at the hands of your father. It was at this time that your gambling escalated.
Criminal history
19You have admitted your criminal record which consists of 10 court appearances for mostly dishonesty offences dating back to 1963. You have received adjournments to be of good behaviour, fines and probation. The most recent convictions were at the Melbourne Magistrates’ Court on 9 March 1984 for theft and unlawful assault. You were then sentenced to a period of probation of 4 years with a special condition that you attend Dr Koranski at the Austin Hospital and receive treatment as directed. You instructed Mr Manning that you could not recall the reason for the referral to Dr Koranski but believe it may have related to the abusive relationship you were in with your then husband.
Psychological and medical issues
20Exhibit D1 on the plea is a report of clinical psychologist, Carla Lechner, dated 3 June 2020.
21Ms Lechner was of the opinion that at the time you offended you were suffering symptoms of a Gambling Disorder, Major Depressive Disorder and unresolved Post-Traumatic Stress Disorder, the latter arising from the childhood sexual abuse you suffered.
22You reported that your father began sexually abusing you from the age of three and continued until you were 16. The sexual abuse included penile penetration from the age of six. In addition to the sexual abuse, your father was violent towards your mother which you often witnessed. You report being terrified of your father.
23You did not disclose the sexual abuse because of your deep sense of shame. You buried your experiences until you were confronted by the disclosures of your own daughters and nieces. Upon learning that your children had been similarly abused by your father you suffered a resurgence of post-trauma symptoms. You also felt immense guilt about not having protected your children from your father. You said that the disclosures tore your family apart and that you were blamed by your children for the offending against them. This led to a period of estrangement of some 18 months. Although there has since been an improvement in the relationship with your family, it nevertheless remains strained.
24You told Ms Lechner that your father’s trial brought back memories of your own sexual abuse committed by him.
25Ms Lechner stated – “[I]n response to this stress and a high level of depression, Ms Queale began gambling heavily as a means of distracting herself. She developed an addiction problem that is directly related to her offending.”
26According to Ms Lechner, you presented with symptoms of a Gambling Disorder in early remission, Major Depressive Disorder and unresolved symptoms of Post-Traumatic Stress Disorder. She said that from an early age you learnt to internalize your emotional distress and you denied and minimised your post-trauma symptoms and depression. Your mood state declined significantly after the disclosure of your own children’s experience of abuse, leading to an escalation of your gambling.
27Ms Lechner stated you impressed as capable of consequential thinking but only recently have you taken a clearer look at the implications of your decision making on yourself and others. She stated you have now found engagement in therapy and involvement with a patchwork group as a good alternative to your previous recourse to gambling.
28Ms Lechner was of the opinion that on account of your mature age, your lack of experience with the criminal justice system, your ongoing mental health problems and reported physical health problems, you are likely to find a period of immediate incarceration extremely difficult to manage. She anticipated a further decline in your mood state in such a setting.
29At the time Ms Lechner wrote her report, she was not aware of your previous offending. An addendum report, Exhibit D2, dated 28 June 2020, was provided by Ms Lechner. This report was prepared after Ms Lechner was informed of your criminal history and following a further interview with you.
30You told Ms Lechner that your previous offending typically occurred at times of extreme interpersonal stress. In relation to the earlier charges, you said you had twin girls and had not previously had anything to do with babies. You suffered post-natal depression and the girls were fostered out for three months. You further stated that you went off the rails and that your marriage was a shambles. Your later offending, you said, occurred in the context of ongoing marital stress. You reported that your husband was violent towards you, including having broken your leg and attacked you with a knife. He then left with your best friend. You have not been in trouble with the police following the end of your marriage until the current offending. Despite your criminal history, Ms Lechner maintains that the risk of you reoffending in this manner is very low.
31Exhibit D3 is a counselling service report of Leigh McLachlan dated 6 July 2020, At the time of that report Mr McLachlan had seen you on approximately six occasions over a five to six month period. He reported you struggled to focus regularly and consistently on your mental health needs. It is his opinion you require ongoing psychological support.
32I was also provided with a medical report from your treating general practitioner (GP) dated 1 July 2020, Exhibit D4. He confirmed that you suffer from a number of health conditions including significant asthma and chronic airways obstructive disease which places you at a high risk of contracting COVID‑19 and other respiratory tract infections. He stated that should you suffer any such infection, that would place significant stress on your cardiopulmonary system based on your high cardiovascular risk profile. You also suffer from obesity, hypertension, impaired fasting glycemia, diastolic dysfunction and left ventricular thickening, osteoarthritis of your right foot and, in 2020, a meniscal tear to your left knee. You require medication for your hypertension. In early 2020, your GP referred you for treatment of a longstanding Post-traumatic Stress Disorder, current anxiety and depressive features. I have since been provided with further reports from your GP and Mr McLachlan. They are Exhibits D8 and D9.
33Your counsel placed particular emphasis on the risk to you that COVID‑19 presents as a result of your age and health issues. He relied in particular on the decision of Incerti J in R v Madex.[7] At paragraph 51, her Honour stated:
“… An important and unprecedented factor which I take into account is the impact of COVID-19 and the risk that it poses to you, if you are sentenced to prison. Your age of 69 years places you in a higher risk category to other people. I am told that if you are not in custody, you would reside on a 60-acre rural property and could self-isolate. This is not an option whilst in prison. I am told that the possibility of contracting the virus weighs heavily on you and makes prison a more onerous prospect for you, than it does for someone younger. I am satisfied that your age, in combination with the risk of contracting COVID-19, is a significant factor and one that I have taken into consideration in determining your sentence.
And at paragraph 52 her Honour stated:
I do not consider that the lack of information about preventative measures which may be put in place by Corrections Victoria alters my view. Mr Madex, you can clearly achieve a more reliable and effective form of self-isolation in the community, particularly given your living arrangements, compared to being in prison. This is not mere speculation on my part.”
[7][2020] VSC 145
34Although, as a community, we now have a better understanding of the COVID‑19 virus and there have been long periods in recent times of zero community transmission, I accept there is a continued risk of contracting COVID-19. Your own doctor raised this as a concern given your comorbidities of asthma and chronic airways obstructive disease. I accept there is a continued risk despite the excellent efforts taken by Corrections Victoria to ensure that our prison system is made as safe as possible. I have had regard to the affidavit of Ms Jennifer Hosking, dated 15 July 2020, from Corrections Victoria which was tendered by the learned prosecutor.
Character reference
35Mr Manning also relied upon a character reference from Adrian Dallow which was undated and unsigned. No objection was taken to its tender. Mr Dallow stated he was surprised when he found out about your offending, describing it as “totally out of character”. He has found you to be a person of good character, trustworthy, punctual, reliable and hardworking. He stated you have assisted the younger members of the local community football and cricket clubs, as well as senior members of the community.
36At the conclusion of the plea hearing, your case was adjourned so that counsel could have the opportunity to address several issues raised in the course of the plea hearing. Your counsel filed with the Court further written submissions on 28 October 2020. In those submissions, Mr Manning withdrew his submission that you had not gambled for the previous 12 months. As best I understand what is now put, you have not used gaming machines since March 2020. It was conceded by your counsel, as was mentioned by Ms Lechner, that you have minimised the extent of your gambling behaviour and that this may bear upon your prospects for rehabilitation and the risk of you reoffending.
37Mr Manning also informed me that on 29 July 2020 you executed a Deed of Self-exclusion with Community Clubs Victoria. A copy of the Deed of Self-exclusion was provided to the Court and is part of Exhibit D10. That Deed prohibits you from entering or remaining within gaming areas, or using gaming machines, at 30 licensed venues near to where you live. I am told the self-exclusion will remain in place until 30 June 2022 which represents the maximum period for which such a deed may be issued. You may of course renew it after that date.
38You have continued your counselling sessions with Mr McLachlan. In the further report provided by him, Exhibit D9, he stated the following:
“Eva continues to present as overwhelmed, highly anxious, and hypervigilant. She still finds it incredibly hard to sleep and suffers from severe breathing difficulties and other ongoing serious medical concerns. In my view, Eva’s mental health problems relate to her unresolved historical trauma, current legal stress levels, and a number of other concerns.”
39You informed Mr McLachlan that you are committed to continuing with counselling to address your gambling problem.
40The further report of your GP, Exhibit D8, stated you continue to experience Post-traumatic Stress Disorder and anxiety symptomatology and related dysfunction. Further, your exertional dyspnoea remains but has been exacerbated in the last month. Specialist investigations are also continuing for your chronic cardiac dysfunction.
Conclusion
41Your offending is clearly serious. It occurred over a significant period of time, some five years and nine months. It was deliberate and calculated behaviour involving some 31 false reports. You did not voluntarily stop your offending. In my opinion, you were aware of the importance of declaring your gross income from at least 28 November 2012. I do not accept your explanation that you did not consider your employment at the Kew Club to be work. You drove the bus and you were paid for doing so.
42Mr Manning sought to portray your offending as involving at times, positive acts of deception, and at other times “passive episodes” of offending. That may be so. However, he did accept that the periods in which you were not required to report came about because of your false declarations. In that circumstance, I do not find the distinction particularly useful.
43I find that your offending was not very sophisticated. It did not involve more sophisticated means such as the use of false identities, false materials or extensive planning. However, your wages were paid into your bank accounts held in the name “Eva Queale”. Your age pension was paid into a separate bank account held at the Bendigo Bank in the name of “Eva Queale-North”. Whether this was deliberately done to avoid detection I am not able to say.
44You made false declarations to the Department and as a result received the sum of $107,255.32 to which you were not entitled. This is a significant amount of money taken from the public purse. It adds to the gravity of your offending.
45I accept that your offending was not committed to fund a lavish lifestyle or for reasons of greed but rather, in the main, to satisfy your gambling addiction. I accept also that gambling for you was a means of coping with the significant psychological trauma in your life. I was told that you gambled between $400 and $500 per week.
46In considering your moral culpability I have regard to the psychological stress caused by your dysfunctional background, the resurgence of your post-trauma symptoms and your resort to gambling as a means of distraction. Ms Lechner stated your gambling escalated to an addiction as you tried to manage your emotional distress. The money falsely obtained was used to fund your gambling and pay your debts. In that context your moral culpability was not as high as it might otherwise have been absent that psychological stress. I should, however, make it clear that whilst your gambling addiction may explain your behaviour, it does not excuse it.
47A matter weighing in your favour is that you have been repaying the sum defrauded by making payments in addition to the amounts being withheld by the Department from your age pension. I am informed that as at this day, the total amount you have repaid is $14,096.68. You take no issue with my making a reparation order.
48I accept you have now desisted from gambling and have taken steps to reduce the risk of relapse. You have also taken some rudimentary steps towards addressing your earlier trauma.
49I also have regard to the fact you have pleaded guilty to the offence and that your plea was entered at the earliest opportunity. Your plea of guilty marks your acceptance of responsibility for your offending and your willingness to facilitate the course of justice. You have also cooperated in the investigation. You voluntarily participated in a recorded interview with investigating officers from the Department and you made admissions to your offending. Through your pleas you have also spared the Court and community the cost and time of a committal hearing and trial. You have spared witnesses from having to give evidence. Your plea of guilty is of added value given the COVID‑19 pandemic and its disruption to this Court’s normal operations.
50I also accept that your plea of guilty is indicative of genuine remorse for your offending conduct. You stated to Ms Lechner that you were deeply ashamed and disgusted with yourself. The additional reparation payments you have made are also indicative of your remorse.
51You have a relevant criminal history, although its relevance to considerations of rehabilitation and specific deterrence is reduced given the time period between that offending and your current offending.
52Your counsel submitted that Verdins[8] principles 5 and 6 operate in your case. I accept that by reason of your Major Depressive Disorder and the unresolved symptoms of Post-traumatic Stress Disorder, any sentence of imprisonment will be a greater burden on you than it would on someone not suffering similar mental health conditions. The learned prosecutor Ms Loh accepted that both limbs 5 and 6 of Verdins operate to mitigate penalty and I shall sentence you on that basis.
[8](2007) 16 VR 269
53You also suffer serious physical ill health. I consider that because of your physical ill health, any time in custody will also add to the burden of imprisonment.
54I accept, given your age and the distress caused to you arising from this charge, that the risk of you reoffending is low. I also take into account the efforts you have taken to address your psychological and gambling issues and the fact you have not been charged with any further offences since you were charged with this offence. As to your prospects for rehabilitation, I consider that they are good provided you continue to address the problems that have led to your offending.
55Mr Manning submitted that I should have regard to the delay between your offending and sentence. Your last false declaration was in August of 2018 and you have been in a state of uncertain suspense as to your fate since then. I accept that the period of delay mitigates somewhat the penalty to be imposed.
56In determining an appropriate sentence, I also have regard to your age. Whilst advanced age does not allow for the imposition of an inappropriate sentence, it may be a significant factor in mitigation. In R v Iles,[9] Redlich JA stated at paragraphs 33 to 35 the following:
“[33] Old age is generally spoken of as a mitigating factor permitting the imposition of a sentence which is shorter than otherwise might be the case. The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility that the offender may not live to be released. General deterrence in the context of sentencing an elderly offender must be considered in the light of the impact upon public perception of a gaol sentence upon a man of such advanced years upon whom a sentence will bear more heavily.
[34] It may in particular circumstances be necessary to impose a sentence which may have the effect of requiring an offender to spend the whole of the remainder of his life in custody. The older the offender, the greater the likelihood that even a relatively short sentence will fall into this category. This case is such an example.
[35] Thus, the fact that each year of the sentence which the appellant must serve will represent a substantial portion of the period of life which is left to him is a weighty consideration which mitigated the sentence to be imposed.”
(citations omitted)
[9][2009] VSCA 197
57In Gulyas v State of Western Australia,[10] Steytler P set out a number of general principles relevant to the appeal before that Court. At paragraph 54, his Honour stated:
“Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.”
[10][2007] WASCA 263
58In my opinion, your advanced age is a significant consideration and the sentencing purposes of general deterrence and denunciation should surrender some ground to the exercise of mercy.
59Mr Manning acknowledged that your offending ordinarily warrants a term of imprisonment. However, he submitted that in the exercise of my discretion I should impose a merciful sentence. He relied on the decisions of Markovic v R[11] and DPP v Snow (a pseudonym).[12]In written submissions, however, received after the plea hearing,
Mr Manning stated that in the circumstances of your case he did not seek to invoke the exercise of mercy as it is understood in Markovic and Snow but rather that there was “a powerful constellation of mitigating factors to be factored into the instinctive synthesis”.[11](2010) 30 VR 589
[12][2020] VSCA 67
60In my opinion, Mr Manning’s original submission is to be preferred. During your childhood you were the victim of your father’s gross sexual abuse over many years. As a frightened child you were powerless to do anything about it. You grew up witnessing his violence towards your mother. These matters led to the development of a Post-Traumatic Stress Disorder which remains unresolved. After escaping the dysfunctionality of your childhood, you then found yourself in a dysfunctional marriage for 14 years in which you suffered physical and emotional abuse. Added to that heavy emotional burden, in about 2000 you learned that your father had been sexually abusing your daughters and nieces. This led to a resurgence of your post-traumatic symptoms, feelings of guilt and family estrangement. You gave evidence for the prosecution at your father’s trial. This caused you to re-live your own traumatic experiences. Your father was ultimately convicted. In my opinion, the tragic circumstances of your background also justify the exercise of mercy in the sentencing synthesis.
61The learned prosecutor, Ms Loh, submitted that a short immediate custodial term should be imposed. She stated that appellate courts have repeatedly emphasised that an actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate fraud against the social welfare system. Ms Loh stated that was because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose for imposing sentences in such cases, namely, general deterrence.
62In determining the appropriate sentence, I am required to have regard to general deterrence as a significant consideration. That is, the sentence to be imposed upon you must deter others from engaging in similar criminal conduct. However, for reasons already mentioned it must surrender some ground.
63The sentence to be imposed should also operate to deter you from further offending. As stated, you have prior dishonesty offences and your offending conduct in this case was not an isolated instance but involved a number of false representations to the Department. However, the prospect of you being imprisoned at your age, in your poor state of health, and which has been hanging over you for some time now, has no doubt already had some personal deterrent effect.
64The penalty to be imposed must also ensure your conduct is denounced and that you are adequately punished for the offence, which punishment should be of a severity appropriate in all of the circumstances.
65I have also had regard to the comparative sentences to which I was referred by counsel.[13]
[13]Warden v R [2019] VSCA 2; R v Pham [2014] QCA 287; Jorissen v R [2017] WASCA 71; DPP (Cth) v Morrison [2016] VCC 1622; DPP v Marinakis [2016] VCC 1586; DPP v Vardouniotis [2016] VCC 368
66As was noted in Hili v R,[14] at paragraph 48:
“Consistency is not demonstrated by, and does not require, numerical equivalence.”
And at paragraph 49:
“The consistency that is sought is consistency in the application of the relevant legal principles.”
[14](2010) 242 CLR 520
67Past sentences may stand as a yardstick against which to examine a proposed sentence.
68It is clear, as was submitted by both counsel, that imprisonment is ordinarily imposed in cases similar to yours, although the authorities also make it clear that each case must be decided on its own facts. Furthermore, s17 Crimes Act 1914 (Cth) states:
“A court shall not pass a sentence of imprisonment on any person for a Federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”
69The maximum penalty of 10 years’ imprisonment reflects the seriousness with which Parliament regards your conduct. The maximum penalty also provides a yardstick against which a sentence is to be considered. I have regard also to the fact that social security offences are prevalent offences which can be difficult to detect. I am also mindful of the fact that offences of this kind tend to “undermine the integrity of the social security system”.[15]
[15]Jorissen v R at [29]
70I have given anxious consideration as to what was said to be the principal issue between the parties, that is, whether you should be required to serve an actual term of imprisonment. There are a number of factors which, taken in combination, have persuaded me that I should not require you to serve an actual term of imprisonment. Those factors may be summarised as including the following:
(i)your advanced age and poor mental and physical health;
(ii) the particular risk to you that is posed by the COVID‑19 pandemic which would make prison a more onerous prospect for you in a situation where you could not self-isolate as readily as you might should you not be imprisoned. The knowledge of the possibility of contracting the virus will also impact on your mental state if you are sentenced to an actual term;
(iii) the application of Verdins principles 5 and 6;
(iv) your significantly dysfunctional upbringing including many years of sexual abuse at the hands of your father, and the later abuse perpetrated by your former husband;
(v) the further trauma and emotional distress upon learning of the sexual abuse perpetrated by your father on your daughters and nieces, and your subsequent giving of evidence at his trial;
(vi) your early plea of guilty and cooperation with the investigating authorities;
(vii) your genuine remorse;
(viii) your reasonable prospects for rehabilitation and the low level risk of you reoffending; and
(ix) that you were not motivated to offend for reasons of greed.
71Accordingly, I propose to sentence you as follows:
72You are convicted and sentenced to a term of imprisonment of 2 years. I further direct that you be released forthwith upon you giving security by recognisance in an amount of $500 that you will comply with the following condition:
(1) that you will be of good behaviour for a period of 3 years commencing this day;
Ms Queale, you must understand that in the period during which this order lasts, that is 3 years from today, if you are not of good behaviour, you may be brought back before me and dealt with for this matter and that may include a term of actual imprisonment. Ms Queale, do you understand that? Good.
73Ms Queale, had you not pleaded guilty to the offence, the sentence I would otherwise have imposed is one of 2 years and 9 months' imprisonment to be released on a recognizance release order after having served a period of 9 months.
74There is a separate reparation order that has been sought. I have referred to it in my sentencing remarks. It is for an amount of $93,158.62. Mr Manning, do you wish to say anything in relation to that order?
75MR MANNING: No Your Honour.
76HIS HONOUR: All right, your client will consent to it?
77MR MANNING: Yes.
78HIS HONOUR: All right. I'll make the order sought in the amount of $93,158.62. Ms Queale, that completes the matters. No doubt Mr Manning will speak to you about the sentence and the obligations it places upon you for the next three years. May I thank both counsel for your assistance in this matter.
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